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TRINITY COLLEGE PUBLICATIONS 


Po.iTicaAL IDEAS 
OF 
Tue AMERICAN REVOLUTION 





EDITORIAL NOTE 


This volume, published by Trinity College under the 
auspices of the Committee on Research of its Faculty, is 
edited, at the request of the Committee, by Professor 
William T. Laprade. It is the first of what the Com- 
mittee hopes may grow into a series of publications of 
the fruits of the study of the members of the staff of the 
College. The Committee feels that it is fortunate in hav- 
ing as the inaugural volume of the series a study dealing 
with so many questions of immediate and current interest. 

The American Revolution is now attracting more than 
usual attention from both writers and teachers of history, 
and this volume fills some gaps in that story. The com- 
ponent parts of the British Empire are today, as they were 
in the eighteenth century, seeking to perfect a working 
formula for their relations each to the other, and it is in- 
teresting in the light of that process to examine the pro- 
posals made in the earlier time which were not then 
found to be practicable, but which are now receiving 
more favorable consideration. The attempt to organize 
the nations of the world into a league or association of 
nations for keeping peace involves many problems similar 
to those faced by the American and British statesmen and 
thinkers who tried in vain to preserve the unity of the 
empire. The basic concept which has too - frequently 
been the rock on which these efforts at political organiza- 
tion have gone to wreck is the doctrine of sovereignty. 
All of these subjects were a part of the political ideas of 
the American Revolution and go to make this volume a 
particularly timely one. 


ra 


PoLiTICAL IDEAS 
OF 


THE AMERICAN REVOLUTION 


BRITANNIC-AMERICAN CONTRIBUTIONS TO THE 
PROBLEM OF IMPERIAL ORGANIZATION 
1765 to 1775 


BY 


RANDOLPH GREENFIELD ADAMS, Ph.D. 


Assistant Professor of History in Trinity College, 
North Carolina 


EC 


Diy ity Paid 


Trinity CoLLEGE Press 
DurHaM, N. C. 
1922 


CopyricHtT, 1922 
By Trinity CoLLecE 
DuruaM, N. C. 


PRESSES OF 
THE SEEMAN PRINTERY, INCORPORATED 
DurRHAM, N, C. 


To 
JOHN STOKES ADAMS 


My FatHer 
WHO HAS BEEN MY MOST 
LUCID AND INSPIRING 
TEACHER OF HISTORY 
AND POLITICS 





PREFACE 


This work is intended in the-first-place-as-a-contribution 
to International Law. In the ‘second place, it.is a chapter 
of Britannic Imperial History,-and in thethird’ place it 
may be regarded asa. fragment of the history of the 
United States. As I conceive it, the thing which George 
Washington deplored as the“monster_ of sovereignty’ is 
the chief stumbling block. of. international cooperation. 
Jealous nationality will not surrender its title to a sup- 
posed supremacy, and as a consequence, international ad- 
justments are rendered difficult, if not impossible. It is 
my belief that the British Empire, or, as it is better known 
today, the Britannic Commonwealth of Nations, presents 
one of our most completely equipped laboratories for the 
study of international relations, for there is being worked 
out the idea of a league of nations without too much idle 
discussion as to the residence of sovereignty. I have, 
therefore, selected that. period of American history in 
which the thirteen colonies were struggling to become self- 
governing dominions, as indicative of the contribution 
America made to the supreme problem of politics while 
working within the laboratory of the Britannic Common- 
wealth.. The separation from Great Britain took the col- 
onies out of that laboratory, so there my story stops. 
Nevertheless, a proper understanding of the fundamental 
political and legal conceptions upon which the thinkers of 
this period worked takes us in some instances into ma- 
terial which was not set down until as late as 1790. It 
seems to me, however, that this fact, and the further fact 
that Ido not concern myself with many of the ideas which 
the. Americans. formulated during the Revolution, but 
after the separation from Great Britain, do not invalidate 
my title. Anyone likely to read a book on political ideas 
knows he can find the ordinary political philosophy of the 
Revolution, the discussion about “natural rights,’ “com- 
pact,’ and the like, in such standard works as those of 


Dunning or Merriam. The story of the political ideas of 
America after the separation and before the Constitu- 
tional Convention constitute, in my way of thinking, the 
“Political Ideas of the Confederation,” and some day I 
shall try to write of them as here I attempt to present what 
I understand to be the “Political Ideas of the American 
Revolution.” ; 

An acknowledgment is due to Dr. Andrew C. McLaugh- 
lin, of Chicago University, under whose inspiration this 
work was begun. I have also to thank Dr. Herman V. 
Ames and Dr. Albert C. McKinley, of the University of 
Pennsylvania, and my colleague, Dr. William K. Boyd, 
of Trinity College, for having read and commented upon 
the manuscript. Especial thanks are due to my colleague, 
Dr. William T. Laprade, of Trinity College, for his care- 
ful reading of the manuscript and for his many valuable 
criticisms. The University of Pennsylvania Law Review 
has kindly given me permission to reprint in one of the 
chapters a part of an article which I contributed to that 
periodical. Mr. Burton Alva Konkle, author of the forth- 
coming “Life and Writings of James Wilson,” very 
kindly read and criticized the chapters relating to Wilson, 
and I am also indebted to him for the picture of Wilson. 


R.iGoA, 


TRINITY COLLEGE, 
Durham, N. C. 


CONTENTS 


CHAPTER 


LyihemDoctrine jot Standing Still! 


II. The British Imperial Problem in the Eight- 


Cite Im HOLE gi aaenae nie Meenas LR NMSA Re IE 


III. The Commonwealth of Nations...................... 


IV. Taxation and Representation: Some Re- 


COMSTAETAELOTS) ewe Me ie sal Mea OREN LIU A enn ea 


V. John Adams as a Britannic Statesman.......... 


VI. Some Things Which Parliament Could 


Ary Dey ieee ea a he a 

VII. The Legal Theories of James Wilson.......... 
VIII. Limiting and Dividing Sovereignty................ 
IX. The Relation to Modern Thought................ 


ibibltesraphical Notes 28k 


ILLUSTRATIONS 


James Wilson, a minature portrait......{rontispiece 


Theories of British Imperial Organization, 


PAVMNC cd alPavi roel av Wal SOge AIL Me Me aR ALF A ELON ANE 


Charles Pratt, First Baron Camden......facing 124 





| CHAPTER I 
THE DOCTRINE OF STANDING STILL 


It is in some quarters regarded as a mild form of heresy 
to write about the eighteenth century without mentioning 
_Dr. Samuel Johnson. Said he, “In sovereignty, there are 
no gradations,” and that about epitomizes his celebrated 
and unfortunate essay in the field of Anglo-American 
politics! Had anyone attempted to discuss the matter 
with the doctor, his boldness would probably have been 
rebuked with some such thunderous proclamation as the 
well known, “Sir! I would not give half a guinea to live 
under one form of government rather than under an- 
other.”2 If one still had the temerity to suggest that 
perhaps that was no adequate reply to the objections which 
the American colonists were making to the management 
of the empire, he would have brought upon his head the 
wrathful denunciation, ‘Sir! The Americans are a nation 
of convicts and deserve anything we give them short of 
hanging.”? The allusion to the American colonies as 
penal institutions hardly helped matters, but does it not 
give an insight into the type of mentality against which 
the Americans had to work? “The last in many things: 
Johnson was the last genuine Tory; the last Englishman 
who with strong voice and wholly believing heart, preached 
the doctrine of standing still.’* No apology is made for 
cutting that sentence off in the middle, as Carlyle goes on 
to extol as a virtue the doctrine of standing still. But 
then Carlyle was not exactly a democrat, and his own 
solution for the British imperial problem seems to have 
been to rescue the self-governing dominions from the 
abysmal depths to which democratic institutions had 

1 Taxation No Tyranny (London: 1774). 


2 Boswell’s Johnson (G. B. Hill ed.), II. 195. 


3 Boswell’s Johnson (G. B. Hill ed.), II. 357. Maryland in particular 
was used as a dumping ground for English convicts. 


*Carlyle’s Review of Croker’s edition of Boswell’s Johnson. 


[9] 


10 POLITICAL IDEAS AMERICAN REVOLUTION 


plunged them and to rule the colonies by proconsular 
English princes who should found new houses with 
hereditary titles. This was neither Johnson nor Carlyle 
at his best; but perhaps it will serve to show the kind of 
thinking against which the liberal thought of America was 
striving to find expression. 

America, after the French and Indian War, was a 
nation which had outgrown its old political garments. To 
its.clamor for new.institutions, necessary to fit the new 
conditions, the restrictive policy of the old colonial system 
brought only more swaddling clothes. This failure of the 
mother country to understand conditions in the colonies 
precipitated the conflict, which needs no representation 
here. But a revolt against toryism produces an intel- 
lectual as well as a physical contest. The latter is always 
destructive ; but the former is not, and it seldom happens 
that a people emerge from a struggle in which they have 
been compelled to put forth their best mental efforts with- 
out having enriched the field of thought. The historian 
of the English law has pointed out wherein British thought 
needed more light and more warmth. “The state that 
Englishmen knew was a singularly unicellular state, and 
at critical times they were not too well equipped with 
tried and rational thoughts with which to meet the case 
of Ireland, or some communities, commonwealths or cor- 
porations in America which seemed to have wills, and 
hardly fictitious wills, of their own, which became states, 
and United States.” Then, in a footnote, he adds: “The 
want of a theory about Ireland which would have mediated 
between absolute dependence, and absolute independence, 
was the origin of many evils.”® ‘Many evils” is a gentle 
reminder of a most painful chapter of British imperial his- 
tory, and yet that chapter contains the fruit of the John- 
sonian dictum, “In sovereignty, there are no gradations.” 

It is here that the problem of the British Empire illus- 
trates the fundamental problem of international politics. 
For it is not Ireland alone which constitutes a sad com- 


5 Shooting Niagara. 
6. W. Maitland, Introduction to Gierke: x. 


THE DOCTRINE OF STANDING STILL 11 


mentary on the inability of men to work out a rational 
theory of sovereignty, since Mr. Lansing has remarked 
that nine-tenths of all international difficulties arise out of 
the problem of sovereignty and the so-called sovereign 
state.’. The thirteen colonies did not endure what Ireland 
tolerated, and in their refusal we may seek for some evi- 
dences of “tried” if not for “rational” thoughts which 
might meet the case of a multicellular political system. A 
recent monograph® has reproduced the theories upon 
which Americans worked in their efforts to construct a 
more perfect union of states which claimed to be sover- 
eign. Yet, after all, the task of the delegates at Phila- 
delphia in 1787 was somewhat simplified by the presence of 
certain factors which are absent in the larger problem of 
organizing the commonwealth or league of nations. If 
the Britannic political laboratory supplies any material for 
study and observation which can throw light on the greater 
problems of international politics and the organization of 
a league of nations, surely it is not unfitting to look for 
the American contributions in that day when the thirteen 
colonies were members of the British Empire. Britain’s 
unquestioned success in the case of her great self-govern- 
ing dominions, and her unquestioned failures in the case 
of the thirteen colonies, and for many centuries in Ireland, 
and her still seething experiments in India, Egypt, and 
Persia, challenge and excite the curiosity of anyone who 
is trying to work out a theory which will mediate between 
those grades of sovereignty which Dr. Johnson insisted 
could not exist. 

But that curiosity must go unsatisfied if there is no 
adequate historical data, if historians have not continued 
the story which Freeman left unfinished and incom- 
plete. Perhaps, if there could be found a federal- 
thinking historian to whom history is something else 
besides past politics, the stock of historical information 
would be greater. A part of the difficulty lies in the 


T Reports of American Bar Association, XLIV. 247. 


8jJ. B. Scott, James Madison’s Notes of the Debates in the Federal 
Convention, and Their Relation to a More Perfect Society of Nations, 1918. 


12 POLITICAL IDEAS AMERICAN REVOLUTION 


fact that the historian must take into account two forces 
which. at first glance seem mutually incompatible. He 
must take cognizance of a centralizing force which is 
trying to devise some central agency for reminding 
each of the groups of society of its responsibility to- 
ward every other group. At the same time the story of 
the federal idea involves the decentralizing force which 
would preserve to each group sufficient authority to de- 
velop freely according to its own genius. Both of these 
forces are observable in the political thought of the Ameri-_ 
can Revolution, and it was partly because of the inability 
of men to preserve the balance between them that the 
Revolution occurred and terminated as it did. 

It has been pointed out that the core of modern liberal- 
ism is a new federalism, not directed wholly toward the 
integration of several states or groups into a larger whole, 
but rather toward the disintegration of the great state or 
group into smaller national groups.® For example, the 
efforts of the modern Britannic statesmen are not directed 
so much toward the creation of a greater Britain, a huge 
superstate, as toward the disintegration of the empire 
into a commonwealth of nations. In America, even some 
of the warm advocates of a league or association of na- 
tions have been wary of the great Leviathandike state of 
states. What light the story of the American Revolution 
has to reflect upon this subject it is our task to find. 

The economic aspect.of.the whole question is one which 
must fill many volumes, and one which cannot properly 
fall within the scope of Such a work as this. Such eco- 
nomic motives as the statesmen of America and England 
saw in the time of the Revolution were frequently so naive 
that we are probably justified in leaving what contempo- 
raries thought very largely out of account. For example, 
in the controversy before 1775, Britain claimed she had 
spent millions in defense of the colonies, and it was no 
more than fair to demand a compensating contribution 
from the colonies. To this the colonies responded with 
much eloquence about their emigration to a wild and un- 


°E. Barker, Political Thought from Spencer to the Present Day, p. 182. 


THE DOCTRINE OF STANDING STILL 13 


civilized country, their battles with and victories over the 
economic difficulties which beset them, and the extent to 
which they had sacrificed their own economic interests in 
favor of the interests of the empire. Fortunately one 
Englishman was realist enough to remark, ““Much decla- 
mation has been used on both sides. The-Enelish speak 
of the blood and treasure they have expended. The 
_Americans say that they have encountered an inhospitable 
climate for the purposes of Great Britain, and have dedi- 
cated their lives and fortunes to her service. There is no 
weight in any of these declamations. Whatever was done 
-by either was done for their.own-advantage,”’ 1° S 
And if one would be a realist he must recognize that on 

the whole imperial problem and the theories of politics 
allied therewith the sentiments of a very large group in 
society are best expressed by the flippant parodist who 
exclaimed : 


“But,_Oh!-God-bless our honest King, 
The Lords and Commons, true. 
And if, next, Congress be the thing, 

Oh! Bless that Congress, too!’11 


Such a group there always is, and its very existence 
must derogate from the value of any generalizations one 
might be tempted to make about the prevalence or repre- 
sentative character of any political theories. -Neverthe- 
less, since we are committed to the task of expounding the 
political thought of the American Revolution, we must 
observe its general position and function in human 
thought. The Germans speak of a “Staats—und Korpo- 
rationslehre,’’ which seems to them to be the general genus 
of which states and corporations are but species. Britan- 
nic history is too full of commercial corporations which 
are suddenly found to be functioning as national states for 
any one to overlook the importance of what, for lack of a 


10 The Case of Great Britain and America: Addressed to are King and 
Both Houses of Parliament (London: Phila. reprint: 1789), p 

114 Poor Man’s Advice to his Poor Neighbors: A Ballad to oe Tune of 
Chevy Chase: (New York: 1774). 


14 POLITICAL IDEAS AMERICAN REVOLUTION 


better term, we may, style The Science of Commonwealths 
and Corporations.!? 

The story of the attempt to reconcile groups, to arbitrate 
between group claims, and the claims of associations which 
are now corporations, now something more, and now 
something less, fills many pages of history. In this great 
story the history of international law and the history of 
federal government meet up with the work of administer- 
ing group interests within a state or of reconciling the in- 
terests of labor unions and churches with the rest of soci- 
ety, of trade wars and “kulturkampfs.” Of that science as 
a whole some future age may have more to say. Sufficient 
it is here to note its existence and to see wherein the sub- 
ject of political theories penetrates the innermost recesses 
of our thought. 


®The use of the word ‘science’ in such a connexion is admittedly 
unfortunate; but for lack of another and better term to express the idea 
of a body of systematized knowledge we must employ it. The German 
“Lehre” is hardly adequate, as in this sense it means rather ‘‘doctrine.”’ 
Similarly, the word “‘commonwealth” instead of “Staat’’ enables us to get 
away from some connotations which do not help in group thinking. or 
the germ of this idea, I am, of course, indebted to Maitland. — 


CHAPTER II 


THE BRITISH IMPERIAL PROBLEM IN THE 
EIGHTEENTH CENTURY 


“Until the war which was ended by the peace of 1763, 
the plantations, deemed only inconsiderable and distant 
parcels of an extensive empire, had remained extremely 
obscure, offering little celebrity to the historian.” Such 
was the opinion of an English spectator-historian who 
could make some pretense to being a scientific observer in 
the modern sense.!_ Such, moreover, is one of the reasons 
why one may properly turn to the period between the war 
which ended in 1763 and the war which began in 1775 in 
a search for efforts to solve the imperial problem. For 
that war, which ended in the expulsion of the French 
from North America, had revealed the colonies as no 
longer negligible outposts of an imperial realm, but com- 
ponent parts of an empire, parts which could be relied 
upon to furnish men and treasures for imperial defense.” 
The British imperial problem, in the eighteenth, as in the 
twentieth century, consisted in the question of how to make 
the political machinery of the empire catch up to the facts 
of the empire. How was the structure of the empire to 
be reorganized to meet a situation in which the overseas 
dominions were no longer “inconsiderable and distant par- 
cels” to be ruled through absentee Boards of Trade or 
negligent Colonial Offices, but were to be given a share 
and a place in the empire commensurate with the dignity 
which the late war [1756-63] had demonstrated that they 
possessed. 

The twentieth century has found the best thought of 
what has been known as the British Empire once more at 


1 George Chalmers, Political Annals of the Present United Colonies from 
their settlement to the Peace of 1763, (London, 1780), Preface, p. i. 

2“Tn 1660 the people of England and of the English Colonies in North 
America may be said to have formed parts of one nation; in 1760 this 
was no longer true.” E,. Channing, Hist. of U. S., II. 598 


[15] 


16 POLITICAL IDEAS AMERICAN REVOLUTION 


work on what is still known as the imperial problem. 
Colonial conferences have become imperial conferences, 
and the far-sighted statesmen of the overseas dominions 
again have given notice that the British Empire is no 
longer a composite state made up of a central dominant 
kingdom with its several “inconsiderable and distant par- 
cels” lying about in the four corners of the earth. To 
such men the British Empire is not a nation, but a league 
of nations, for which some suitable machinery is to be de- 
vised, and they urge the claims of those they represent 
with an unmistakable insistence, albeit with the same loy- 
alty to the empire which characterized the claims of almost 
all the pre-Revolutionary American agitators right down 
to the battle of Lexington. The liberal statesmen in 
Great Britain in the twentieth century seem to have the 
same understanding of the aspirations of their overseas 
colleagues that made the eighteenth century English Whigs 
side with the Americans of their day. The chronicle of 
liberal thought as well as the history of the British Empire 
calls for the story of that earlier epoch in which liberals at 
home and abroad were outvoted by the Tories in a Parlia- 
ment elected by the “rotten” borough system. 

In the ten years preceding the American Revolution, 
the liberals on both sides of the Atlantic called for the 
bringing of the old political apparatus up to date. From 
this agitation emerged three distinct concepts of the nature 
of the empire. First, there were those who held to the 
“Theory of Colonial Dependency,’ who regarded Britain 
as the head and mistress of her dominions and the domin- 
ions as children, proper subjects for exploitation under the 
old colonial system. Adherents to this view believed that 
the Parliament then existing at Westminster was in fact 


3 Dr. W. T. Laprade, while editing the John Robinson Papers, called my 
attention to a delightful illustration of what sometimes took place. ‘‘The 
Earl of Sandwich set down in black and white what he demanded for one 
of the seats at Huntington, ‘I must have £2000 to be lent me for five 
years on my bond; and to pay the expenses of the election, which in 
all probability would not amount to £300. The condition offered to Cap- 
tain Phipps are thinking and acting as I do on all American points.’ ” 
See: G. 0: Trevelyan, The American Revolution, pt. III. 357n. he Earl 
of Sandwich, of course, was anything but a liberal and a friend of the 
overseas dominions. 


THE BRITISH IMPERIAL PROBLEM 17 


an imperial parliament, in the form it then had, i.e., that 
the Lords and Commons of Great Britain were adequate 
representatives of all the outlying portions of the empire 
‘as well as of the constituencies which they happened to 
represent on the island of Britain. They believed that 
this Parliament had political supremacy and overlordship 
over all the dominions wherever situated. Second, there 
were those who believed that there should be an imperial 
‘parliament, but that the Parliament at Westminster as 
then constituted was not such an assembly. These men 
held that the British Empire was in essence a federal state, 
and that as such it should have a federal parliament, rep- 
resenting all the dominions, with supreme jurisdiction over 
_all the empire and paramount over all subordinate legisla- 
‘tures. These were the advocates of “imperial federation” 
‘in the sense in which the term is still employed. To give 
a name to this political form is dangerous, yet it is sug- 
gested that Freeman’s term, ‘Federal Commonwealth,” 
-accords best with the ideas which this group held, with 
the additional understanding that what Freeman called 
the “Central Power” in the federal commonwealth be in 
the nature of a parliament with legislative functions.* 


Third, there were those who held to the theory that the 
colonies in America were in fact states in the political 
sense, that they were what are commonly known as “na- 
tions,’ that their local legislatures were the supreme 
power over them, under the crown; that their sole con- 
| mection with Great Britain lay in the crown; that the par- 
liament at Westminster was but one of many co-equal 
legislatures, analogous, for example, to the General Court 
of Massachusetts Bay. The logical consequence of such 








4“We may then recognize as the perfect Federal Commonwealth any 
collection of States, in which it is equally unlawful for the Central Power 
to interfere with the purely internal legislation of the several members, 
and for the several members to enter into any diplomatic relations with 
other powers.” FE. A. Freeman, History of Federal Government, 2nd ed. 
(1893), p. 8. Historically there is no question but that this was a per- 
fectly tenable view of the nature of the empire. William Knox remarked 
in 1765, “I find almost as many instances of parliament’s exercising 


supreme legislative jurisdiction over the colonies, as therd have been ses- 
soins of parliament since the first settlement if America by British sub- 
jects.” he Claim of the Colonies to an Exemption from internal Taxes 
imposed by the Authority of Parliament Examined, (London: 1765). 





18 POLITICAL IDEAS AMERICAN REVOLUTION 


a conception of the empire was complete independence, 
whereby the colonies would become units in international 
law, separate so-called sovereign states in the society or 
family of nations. A writer on the common law has 
pointed out that the “life of the-law is not logic, it is ex- 
perience.” > This is equally true of the constitutional law 
of England. Even those who were soberest and clearest 
in thought did not follow the idea to its logical conclusion. 
They do not do so today. Experience had and has demon- 
strated the utility of the empire, despite some of its illib- 
eral policies. When pressed for an explanation of what 
organ of the empire should assume control in case of war, 
foreign affairs, and, in the eighteenth century, the regula- 
tion of trade, the men who held to this third group replied 
that in such matters they were perfectly willing that West- 
minster should shoulder the burdens, but denied vehe- 
mently that this gave Westminster any primacy among the 
other nations which composed the empire. Such a political 
form we call the “Commonwealth of Nations.”® And the 
thing the liberal thought of the Revolution foresaw, the 
empire has in fact become. At the recent meeting of 
the Imperial Conference, held in London in 1921, the same 
imperial problem was attacked, and the consensus of opin- 
ion of the representatives of England and the overseas 
dominions alike was that there was nothing particularly 
to be gained by calling a constitutional conference or estab- 
lishing an imperial parliament, that there was nothing the 
dominions could do as independent nations that they can- 
not do now, that there is no essential thing in which the 
great self-governing dominions differ from the so-called 


50. W. Holmes, The Common Law, p. 1. 


©The familiar distinction between a “federal union’? (federal system) 
and a “confederation” will occur to one in connexion with the second and 
third groups. But in fact both these terms are totally inadequate to de 
scribe the thing the Americans were aspiring to in 1774 and the thing 
the British Empire has in fact since become. Any orthodox work on 
politics will give the usual facts and terms about “federal unions” an¢ 
“confederations,” e. g., J. W. Garner’s Introduction to Political Science. 
pp. 142-67; 191-7. But most of them totally ignore this new and vitally 
significant form, the Commonwealth, or League of Nations. This is al 
the more astonishing in view of the fact that the avoidance of periodically 
occuring world tragedies depends so largely on understanding this new 
form of political organization. 


| THE BRITISH IMPERIAL PROBLEM 19 
independent nations of the world, and therefore it is wise 
to let well enough alone.*? Such an arrangement appar- 
ently works, and each member of the imperial conference 
subscribed to the proposition that the empire must endure, 
that the constant consultations between the premiers of 
the different dominions must be kept up to insure the 
endurance of the empire, and that it was perfectly pos- 
sible to operate a league of nations without reference to 
the illusion of independence or the spook of sovereignty. 
_ Ten years before the outbreak of the American Revo- 
lution, a colonial governor wrote to a friend, “the patch- 
work government of America will last no longer, the ne- 
cessity of a parliamentary establishment of the govern- 
ment of America upon fixed constitutional principles is 
brought on with a precipitation which could not have been 
foreseen a year ago; it is become more urgent by the very 
incidents which make it more difficult.”® In fact it must 
have been obvious to any colonial administrator that “in- 
stead of certain constitutional law, adapted to the nature 
of governments, established by the sovereign or imperial 
state and recognized by the dependent and subordinate 
states, America has hitherto been governed by temporary 
expedients.”® Throughout the ten years, efforts were made 
to attack the problem as one of imperial constitutional law. 
Even at the end, when considering the injustice done their 
fellow colonists under the Boston Port Bill, with its shut- 
ting off commerce from one of the chief ports of America, 
the Committee on Correspondence of Pennsylvania urged 
their compatriots in Massachusetts Bay that the proper 
method of remedying the difficulty, now amounting to a 
wrong, lay in an assembly of delegates “to ascertain our 
tights and establish a political union between the two 
countries, with the assent of both, which would effectually 





™ Conference ofl the Prime Ministers and Representatives of the United 
Kingdom, the Dominions and India, held in June, July & August, 1921. 
(London: H. M. Stat. Office: 1921) Cd. 1474, pp. 9, 10, 22. 

8 Barrington-Bernard Correspondence, 1760-1770, (Edited by E. Channing 
& A. C. Coolidge, 1915), p. 99. 

® Francis Bernard, Select Letters on the Government of America and the 


Principles of Law and Polity Applied to the American Colonies. (London: 
1774), p. iti. 


20 POLITICAL IDEAS AMERICAN REVOLUTION 
Ysecure to America their future rights and privileges. Any- 
thing short of this will leave the colonies in their present 
precarious state, disunited among themselves, unsettled in 
their rights, ignorant of their duties, and destitute of that 
connection with Great Britain which is indispensably 
necessary to the safety and happiness of both.”!° The his- 
torically minded spectator could not fail to perceive the 
existence of a problem of practical political and constitu- 
tional engineering to solve which “recourse was had in 
vain to parchment authorities made at a distant time, when 
neither grantor nor the grantees of American territory had 
in contemplation anything like the present state of the two 
countries.”1! Prospective Tory and potential patriot alike 
were thinking out some plan whereby the British imperial 
problem might be solved, and though the futility of their 
efforts may make those efforts relatively negligible for 
purposes of American history, they certainly have their 
place in the history of the British Empire. This chapter 
is, for reasons of convenience, devoted to the first two of 
the three concepts of the empire mentioned above, i.e., 
colonial dependency and imperial federation, while the 
third, more elusive, yet today more significant in history, 
in politics, and in international law, is reserved for another 
chapter. 
THE THEORY OF COLONIAL DEPENDENCIES 


The eighteenth century, like the twentieth, had its 
European war in which the overseas dominions flocked to 
the banner of Britain and afterwards asked for a greater 
share in the management of the empire and a recognition 
of their status as self-governing states within the Britan- 
nic Empire. But let no one be deceived by this historical 
parallel. At Paris in 1763 there was no Borden or Smuts 
to insist “that the assent of the king as high contracting 
power to the various treaties should in respect to the do- 
minions be signified by the signature of the dominion rep-., 
resentatives’ so that each American colony could “pre- 


1918 June, 1774. Force, American Archives, 4th ser., I. 486. 
4 ere Ramsay, A History of the American Revolution. (Phila., 1786), 


THE BRITISH IMPERIAL PROBLEM 21 


serve unimpaired its absolute autonomy” and make clear 
that “the Britannic Commonwealth is in itself a com- 
munity or league of nations.” !? 

In considering the subject of early American efforts to 
define the relationship between the component parts of the 
empire, the thought turns almost instinctively toward 
those efforts at colonial union and confederation which 
began to appear early in colonial history. But the “Plans 
of Union” which have received the most attention from 
American historians are, most of them, based upon an en- 
tirely different need and are actuated by different motives 
from the theories which appeared in the later period on the 
eve of the Revolution. Those plans, both the theoretical 
and doctrinaire ones of private individuals and the plans 
of colonial congresses, were inspired rather by the neces- 
‘sity of common defense against the French and Indians) 
and were bent rather on linking up contiguous or neigh- 
boring states or provinces in a local confederation than 
‘designed to work out a formula for the organization of 
‘the Britannic Commonwealth of Nations.1* The cele- 
brated Stamp Act Congress called in 1765 was in one 
: sense merely one of the last of a series of colonial confer- 
ences looking toward concerted action by the colonies. 
But in another sense it was something entirely new; this 
was no meeting of colonial governors and Indian chiefs of \ 
which the frontier town of Albany had so many times 
been the witness. Even the Albany Congress of 1754 
had been called under the instructions of the Lords of 
Trade and confined its attention very largely to Indian 
affairs and the prospect of a North American colonial 
-union.'¢ But the Stamp Act Congress was not a paternal- 


istic creation emanating from Lords of Trade and Planta-) 


#2 Sir Robert Borden on ‘‘Canada’s Status as a Nation within the British 
| Empire”, N. Y. Sun, Oct. 7, 1919; reprinted in the Cong. Rec., 66th Cong. 
Ast. Sess. pp. 8010- 8011. He states the part played by the overseas 
dominions at Versailles in 1919. 

_ 7R, Frothingham’s Rise of the Republic of the United ae p. 107-21, 
_ contains a study of these early plans and Congresses. See also us Winsor, 
Critical and Narrative History of the United States, V. 611. 

144. Channing, in History of the United ‘States, II, 569-70, and Ameri- 
can History Leaflet No. 14, indicates the nature of the ‘Albany Conference 
| and the various plans there suggested by Franklin, Hutchinson, and others. 














22 POLITICAL IDEAS AMERICAN REVOLUTION ! 


tion; nor was it concerned with measures for defending 
England’ S possessions from savage foes; it undertook to. 
raise the question of the political constitution of the Brit-. 
ish Empire. It was in a sense a forerunner of those) 
“colonial” and “imperial conferences” which the next two. 
centuries produced; but it lacked representatives from 
Britain, and even the timorous Lieutenant Governor 
Colden of New York gave it scant courtesy when it met. se | 
Its utterances are not significant because they are profound 
as much as because they are representative. Yet, in the 
main, it may not be entirely unfair to call it a conservative 
assembly. The story of what it did has beén told many 
times.16 Despite its character as a meeting of protest, it 
betrayed in all four of the documents which it produced 
an unmistakable adherence to the “colonial dependency” 
theory of the nature of the empire. 

The report of the Committee on Colonial Rights ad- 
mitted the ‘‘due subordination of the colonies to the crown 
and parliament.”17 The Declaration of Rights and 
Grievances as adopted admitted “that his Majesty’s sub- 
jects in these colonies owe the same allegiance to the: 
crown of Great Britain that is owed from his subjects. 
born within the realm, and all due subordination to that: 
august body, the Parliament of Great Britain”; this, in 
fact, was the first article of the declaration.18 The ad- 
dress to the King conceded that the colonial legislatures 
were “subordinate,” while the separate memorials to the 
Lords and Commons at Westminster employ the same 
language, thus admitting the supremacy and primacy of 
parliament in a manner quite inconsistent with any idea 





% Boston Post Boy, Oct. 14, 1765. 


7¢R. Frothingham, in Rise of the Republic, pp. 177-200, has worked this: 
out. Although it might be going too far to describe it as a ‘Tory assembly, in: 
view of the unprecedented boldness exhibited in calling it at all, yet from 
progressive Massachusetts two of the three delegates were what even in 
pie day were known as tories. See Hutchinson, History, III. 103, 118) 
and note. | 


1 Reprinted in T. Pitkin, Political and Civil History of the United States, 
(1828), I. 448. 


38 Other Proceedings of the Stamp Act Congress are reprinted in H. 
A i gc ke and Acts of the Revolution in America (Baltimore: 1822), 
pp. 457-9. 


THE BRITISH IMPERIAL PROBLEM 23 


yf an empire of co-equal states. Nevertheless, while 
dmitting in theory that which overthrew any argument 
hey might have in law, the colonial representatives 
‘humbly conceived that this subordination is sufficiently 
ecured by common law, by our allegiance and above all 
yy the general superintending power and authority of the 
vhole empire indisputably lodged in that august body the 
varliament of Great Britain, whose authority is clearly ad- 
nitted here, so far as our circumstance is consistent with 
he enjoyment of our essential rights as freemen and as 


British subjects.”19 Here was a new note: the tradi- 


ional supremacy of Parliament, so well established in 
inglish constitutional law, was declared inapplicable to 
mperial constitutional law. Parliament could not do any- 
hing it chose but was limited by the essential rights of 
3ritish subjects. Yet the expressions of the Stamp Act 
Songress were on the whole conservative as befitted the 
ympathies of the majority of those who composed it. Far 
rom looking toward total separation and independence it 
was very definitely an effort to make clear the status of 
olonies in an empire in which there existed an imperial 
yarliament with whose acts a part of the empire was 
lissatisfied.?° 

This admission of colonial dependency was made by 
yotential rebels against the authority of Great Britain 
without the least qualm. “It was readily granted that 
he colonies are dependent states united under one head, 
ind with the other dominions, form one entire empire,” 
n which empire it was “admitted that the parliament of 
steat Britain as the supreme legislative power, has a 
superintending authority to regulate and preserve the con- 
1ection between the several parts and members of the em- 


29 Pitkin, Political and Civil History, I. 453. 


»“The foundation is now laid for rendering the British Empire the 
nost extensive and powerful of any ever recorded in history; our con- 
lection with this empire we esteem our greatest happiness and security, 
ind humbly conceive that it may now be so established by your royal 
wisdom as to endure to the latest period of time; this with most humble 
submission to your majesty we apprehend will be most effectively accom- 
plished by fixing the pillars thereof on liberty and justice and securing 
the inherent rights and liberties of your subjects here, on the principles 
9f the English Constitution.” Niles, Principles and Acts, p. 458. 


24 POLITICAL IDEAS AMERICAN REVOLUTION 


pire.21_ Such an admission, coming from one who then 
went on to the Lockeian formula about there being no 
right in Parliament to deprive the colonists of their prop- 
erty without their consent, shows how essentially — 
ative the early protestors were willing to be. 

With such conservatism in America, there is no wonder 
that the House of Commons reveals very little advance 
beyond the conception of the empire in terms of “our col) 
onies.” In fact, after the Stamp Act provoked a wave of 
rebellious indignation throughout the colonies, the nee 
ances on the floor of the Lords and Commons show an 
almost unanimous assent on the part of the English to the 
validity of this theory of empire. The Parliament assured 
the King of its support “in all such measures as shall be 
necessary for preserving and securing the legal dependence 
of the colonies upon this their mother country, for en- 
forcing their due obedience to the laws, for maintain- 
ing the dignity of the crown and asserting the indubi- 
table and fundamental rights of the legislature of Great 
Britain.”22 Naturally enough the King replied reas- 
serting the “legislative power of this kingdom over its 
colonies.”23 Lord Mansfield, one of the ablest of the 
English thinkers, put this theory in unmistakable lan- 
guage in his assertion “that the British Legislature, as 
to the power of making laws, represents the whole 
British Empire, and has authority to bind every part, 
and every subject without the least distinction, whether 
such subjects have the right to vote, or whether the 
law binds places within the realm or without.’’24 What- 
ever posterity chooses to think of Mansfield’s analysis, 
history has to thank him for his startlingly clear ex- 
position of the theory of colonial dependency. For- 
tunately Lord Mansfield’s reputation in English history 


, 


21 “A, B.”’ in a letter to the Boston Wpeers-? (1768) reprinted in the: 
American Gazette; (London: 1768), p. 45. Yet this passage occurs in the 
same letter with the following, “‘As the yea are supposed to be the best’ 
judges of what will promote their good, and most interested in what con- 
cerns their own safety, it is an established maxim that no human laws 
can or ought to bind them unless made with their consent.” p. 49. 

2 Hansard, Parliamentary History, XVI. 89, Dec. 17, 1765. 

23 Hansard, Parliamentary History, XVI. 94, Jan. 14, 1766. 

74 Hansard, Parliamentary History, XVI. 174, Feb. 24, 1766. 


THE BRITISH IMPERIAL PROBLEM 25 


does not depend upon the character of his vision as a 
statesman of the empire. Lord Lyttleton, more temper- 
ate, yet no less explicit, explained that these “maxims 
which imply a subjection to the supreme government or 
legislature do not exclude the existence of inferior legisla- 
tures, with restrained powers subject to the superior legis-" 
lafure.’’2° 

From 1765 to 1775 the official position of the adminis- 
tration in England remained the same: the colonies were 
subject to the legislative authority of the Parliament of 
the British Isles.2® Moreover, this was the theory of the - 
liberal Burke and Chatham as well as of the less liberal 
~North and Mansfield.27 Even Charles James Fox be- 
lieved that America was wrong in resisting the authority 
of Great Britain’s legislature.28 The debates in Lords 
and Commons during these ten years resound with classic 
references to the colonies of the ancient world, and while 
the liberals cited the tradition of the free and uncontrolled 
Greek and Phcenician colonies, the tories summoned to 
their aid the illustration of the Roman pro-consular ad- 
ministration and its stricter connection with the metrop- 
olis.2° Yet it is probably safe to say that practically not 
a member of Parliament in those years went further than 
the theories of colonial dependency. Of course not all 
were so obtuse as the worthy knight who blandly inquired 


2% Hansard, Parliamentary History, XVI. 166-7. Feb. 24, 1766. 


26 Hansard, Parliamentary History, XVI. 94 Jan. 14, 1766. At the other 
end of the ten years the speech from the throne was still in terms of 
the dependence of the colonies on Parliament. Hansard, Parliamentary 
| History, XVII., 1159. 

_ See chapter on Some Reconsiderations of Taxation and Represen- 
tation with citations to Chatham in Hansard, Parliamentary History, XVI. 
| 101, and to Burke in Jbid., XVII. 1266-7. 

28 Hansard, Parliamentary History, XVII. 1288. April 22, 1774. So too 
Richard Jackson, even while opposing the Stamp Act, asserted ‘‘Parliament 
|is undoubtedly the universal, unlimited legislature of the British Dominions, 
ete.” Sir Edmund Fitzmaurice, Life of SReburie, I. 224, 

2 “The reasoning about the colonies drawn from the colonies of antiquity 
is a mere useless display of learning; for the colonies of the Tyrians in 
Africa and the Greeks in Asia were totally different from our system. 
No nation before ourselves formed any regular system of colonization 
but the Romans; and their system was a military one of garrisons placed 
in the principal towns of the conquered provinces. But the right of 
jurisdiction of the mother country over her! colonies among the Romans 
on boundless and uncontrollable.” Hansard, Parliamentary History, XVI. 











26 POLITICAL IDEAS AMERICAN REVOLUTION 


whether it was the purpose of Parliament to annihilate the 
colonial assemblies.2° But when one member did have the 
vision to liken the colonies to foreign nations with whom 
a cause of friction would be made a subject of negotiation 
and not of immediate invasion such as had been done in 
New York and Massachusetts,?1 this suggestion was lost 
in the tumult of the eloquence of other honorable mem- 
bers, who could thunder that Boston was to Westminster 
as Carthage was to Rome, and hence “delenda est!’’?? 
The self-styled imperial parliament, including Whigs, 
Tories, Burke, Chatham, North, and George III as well, 
never seem to have got beyond the idea that the overseas 
dominions were “our colonies.” 53 

One might have supposed that the existence of the char- 
ters in certain colonies would have given some suggestion 
of a different status, as being compacts or constitutions 
stating the terms under which men consented to submit 
to government at all. But far from it, it was even sug- 
gested that the charters were merely guarantees against 
illiberal interference by the King, and by no means invali- 
dated the right of Parliament over all Englishmen in 
_America.34 A Tory annalist of the period, who had op- 
portunities for personal observation of events and personal 


® Sir Francis Norton: Hansard, Parliamentary History, XVII. 1194, 
March 28, 1774. 


“Colonel Isaac Barre: Hansard, Parliamentary History, XVII. 1307. 
March 2, 1774. 


#2 Mr. Van: Hansard, Parliamentary History, XVII, 1178, March 23, 1774. 


Cf, the interesting parallel a century and a half later in which the 
theory still persists. Sir R. Jebb remarks, “ ‘Our Colonies’ betrays a mind 
which has not yet acquired the modern perspective. The expression marks 
the user as mentally disqualified for Britannic statesmanship. Tried by 
this simple but sufficient test, the present British Cabinet (1913) has been 
found to yield not a single member with a modern outlook.” The Britannic 
Question, pp. 71-2. James Otis inquired by what right Englishmen used 
this expression “Our Colonies” and suggested that Americans might as 
well say “Our London.” Considerations on Behalf of the Colonists. (Lon- 
don: 1765. 2nd Ed.), p. 6. 

* “The colonies are secured by these charters from the despotism of 
the crown, of whom they are, perhaps, as independent as inhabitants of 
Great Britain can be. But from this state of independence of the crown 
which the colonies insisted upon results the necessity of a dependence 
on some other power;—sound policy, and the nature of modern coloni- 
zation require it. This power must be the parliament of Great Britain 
who hath and ought to have, a full and absolute sovereignty over all 
the British dominions.” The Late Occurrences in North America and the 
Policy of Great Britain considered. (Landon: 1766), p. 2. 


THE BRITISH IMPERIAL PROBLEM 27 


contact with the thought in governmental circles in Eng- 
land, expressed the opinion that a charter did not erect the 
community to which it was granted into “a province of 
the English Empire, to be regularly governed by the acts 
of a provincial legislature.” This indeed is the essence of 
the Tory view and in the main the basis of the “our col- 
onies” theory of colonial dependency, assuming that the 
empire was an “English Empire” which was formed by 
the union by statute of the two kingdoms of England and 
Scotland “while the coalition of Great Britain with her 
dependencies was established by common law.” 2° 

As a matter of fact, there is something to be said in de- 
fense of this position. As regards the crown colonies and 
other dependencies, Great Britain still stands in the rela- 
tion of suzerainty which she once asserted over all her 
colonies. Many of them are still even “possessions, rather 
than colonies,’”’26 and so perhaps it may be the more readily 
understood why at one time many people in England re- 
garded all of the outlying parts of the empire as colonies 
rather than self-governing dominions. 

The futile and belated efforts of Chatham and Burke to 
arrange an adjustment, the one just before, and the other 
just after the outbreak of the Revolution, show that both 
of those statesmen were still clinging to the old theory. 
In February of 1775, when Chatham startled and shocked 
the Lords by introducing a bill of his own for reconcilia- 
tion with America, he could not get away from the fetish 
“that the American.colonies have been, are, and of right 
ought to be, dependent on the imperial crown of Great 
Britain, and subordinate to the British Parliament.” Nev- 
ertheless, he struck a new note in his further assertion that 
this Parliamentary supremacy was applicable to matters 
touching the general weal of the whole dominions of the 
imperial crown of Britain, “which he designated as regu- 
lation of trade and matters of naval defense of the whole 
empire.” Recognition of colonial jurisdiction over taxa- 


* Chalmers, Annals, I. 130, 140. 


*°W. H. Woodward in his Expansion of the British Empire, p. 296, 
employs this expression. 


28 POLITICAL IDEAS AMERICAN REVOLUTION 


tion was accorded. Here was the germ of a new idea, i.e., 
that it was possible to limit the jurisdiction of Parliament 
and grant certain powers to the subordinate jurisdiction. 
Chatham was headed toward the. idea of federalism. 
However, the insistence with which he emphasized that 
“all the subjects in the colonies are bound in duty and 
allegiance to recognize and obey (and they are hereby re- 
quired to do so) the supreme authority and supreme power 
of the parliament of Great Britain’? makes it impossible 
to get Chatham out of the “our colonies” class of think- 
ers.37 Burke’s bill for composing the troubles with the 
colonies, which he introduced in November of 1775, re- 
flected the same theory “that the parliament of Great Brit- 
ain was not representative, but the sovereign of America” 
and might graciously choose “‘by its own act for wise pur- 
poses to put the local power of the purse into other hands 
than its own, without disclaiming its just prerogative in 
other particulars.” There is no question but Edmund 
Burke was sincerely sympathetic with the aspirations of 
the American colonies, but that he possessed the vision to 
imagine either a Federal Commonwealth or a Common- 
wealth of Nations, in each of which the ideal of the equal- 
ity of each of the overseas dominions with the British Isles 
was a necessary element, is doubtful. The difficulty of 
defining the relationship between the colonies and Great 
Britain which so troubled men like Governor Bernard did 
not worry Burke, who contended that the “silly and wicked 
attempt to define it had been the first and continued cause 
of their present disunion.” One is tempted to question 
whether after all this was the language of a sincere politi- 
cal engineer.?§ 


7 Hansard, Parliamentary History, XVIII. 198. Lord Shelburne, who 
might properly be classed with those of larger vision, even went so far as to 
oppose the Declaratory Act in 1766, not so much because he wanted to 
surrender the idea of the supremacy of Parliament as because he wanted 
to avoid the question altogether: Fitzmaurice, Life of Shelburne, I. 260 and 
Hansard, Parliamentary History, XVI. 165. 

** Hansard, Parliamentary History, XVIII. 1299. Nov. 20, 1775. That 
the theory of Parliamentary supremacy was by no means confined to the 
English, is demonstrated by the appearance of the Four Dissertations on 
the Reciprocal Advantages of a Perpetual Union between Great Britain, 
and her American Colonies; (Philadelphia: 1766), written for Sargent’s 
prize medal at the University of Pennsylvania; all four acknowledge subordi- 
nation) of the colonies to the Parliament at Westminster, pp. 28, 100, 109. 


THE BRITISH IMPERIAL PROBLEM 29 


THE THEORY OF IMPERIAL FEDERATION 


‘The Parliament at Westminster threshed out the sub- 
ject of “no taxation without representation” quite as thor- 
oughly as did colonial pamphleteers and assemblies in the 
decade before the war, yet it is remarkable how few there 
were in that body to whom occurred the idea of taking the 
Americans at their word and granting them representation 
in Parliament. The geographic obstacles were obvious 
and played a large part in the matter; the difficulty of 
making the tenure of office of the American delegates co- 
incide with corresponding periods in England ; the obvious 
fact that a large part of the time would be consumed with 
discussions of purely British affairs in which the Ameri- 
cans would have not the slightest interest, all com- 
bined to make this solution a rather remote possibility. 
Moreover, one is tempted to suggest that after all there 
may have been something in Franklin’s assertion that both 
sides were too proud and obstinate to take the initiative in 
such a scheme. Nevertheless, the solution of the problem 
by what is known today as “imperial federation” was sug- 
gested on both sides of the Atlantic.2® This was the mode 
by which the thirteen colonies subsequently solved the 
same problem when they had secured their separation from 
Great Britain. But the problem of 1787 was a far simpler 
one than had been that of 1765-75. The earlier prob- 
lem, essentially the same as the British imperial problem 
of the twentieth century, involved ethnic and geographic 
difficulties of no mean proportions. The presence of the 
befezzed deputies from Algeria in the French Chamber 
suggests what might have been. But the suggestions of 
those who advocated granting representation to the Ameri- 
cans ranged all the way from simply adding new members 
to the old body to constructing an entirely new Imperial 
Parliament. 


* “Tmperiai Federation, i.e., the creation ot a Federal Parliament with 
an executive responsible to It.” This is the modern definition of the 
same solution and serves the purpose of this analysis. See R. C. Jebb, 
“The Britannic Question,” (1913), p. 126, also A. B. Keith, “Imperial Unity 
‘and the Dominions” (1916), pp. 498-509. 


30. POLITICAL IDEAS AMERICAN REVOLUTION 


It is to this group of thinkers, who believed in the possi- 
bility of a federal commonwealth of Britain, that the ~ 
American, James Otis, seems to belong. Difficult as it 
is to extract any consistent political philosophy from the | 
somewhat chaotic utterances of Otis, there is little doubt © 
that at the outset he acknowledged the right of the su- 
preme power in the state to tax its colonies. What is 
more, he acknowledged that the supreme power in this 
case was the Parliament at Westminster. Such an admis- 
sion would seem to undermine the whole fabric of his tra- 
ditionally accepted position as an exponent of the Ameri- 
can cause. But as a fact it should be remembered that 
Otis fastened his attention upon the nature and composi- 
tion of that parliament which, he granted, had “the same 
right to levy internal taxes on the colonies as to regulate 
trade.”’#° Otis saw that Parliament as then constructed 
was little more representative of England than it was of 
the united colonies, that part of the disease of which the 
rebellious colonial attitude was only a symptom, was the 
“rotten” borough system in England.44‘ When a Tory 
cited the essentially unrepresentative character of the 
British legislature as a defense of the theory of virtual 
representation (i.e., the theory that while Parliament did 
not in fact represent all the people proportionately, it rep- 
resented them all virtually), the reply of James Otis be- 
longs even more essentially in English than in American 
history. “To what purpose is it to ring everlasting 
changes to the colonies on the cases of Manchester, Birm- 
ingham and Sheffield, who return no members? If those 
now so considerable places are not represented, they ought 
to be.” Moreover, if it be really true that “by far the 
major part of the inhabitants of Great Britain are non- 
electors, the more is the pity!’42 Otis believed that a 

A Vindication of the British Colonies published by Mr. Otis at 
Boston in 1765 (London: 1769), pp. 23, 29, 30. Originally published 
as A Vindication of the British Colonies against' the Aspersions of the 
Halifax Gentleman in his letters to his Rhode Island Friend [James Otis] 
(Boston: 1765). This assertion of the supremacy of parliament is also 


made in The Rights of the British Colonies Asserted and Proved by James 
Otis, Esq. (London: 1766: 3rd ed.), p. 49. 


“ Otis, Vindication, etc., pp. 23, 29, 30. 


“James Otis, Considerations on pent oF its Colonists in a letter to 
a Noble Lord, (London: 1765, 2nd Ed.), 


THE BRITISH IMPERIAL PROBLEM 31 


supreme parliament of the Britannic Empire ought to be 
able to do what the self-styled imperial parliament claimed 
its right to do, but he denied that the then-existing parlia- 
ment was such an imperial parliament, representative of 
all the subjects “without as well as within the realm’ of 
Britain.*% 

But a far more consistent and thoughtful supporter of 
the idea of imperial federation was the British Governor 
» Thomas Pownall of Massachusetts Bay. He had the 
vision to see what the empire had in fact become; he 
understood that it was no longer fitting that a small island 
off the coast of Europe should send its proconsuls to the 
ends of the earth and expect the ends of the earth to yield 
submissive obedience. Whether Britons liked it or not, 
the fact was that “The British Isles, with our possessions 
in the Atlantic and in America, are in fact united into one 
grand marine dominion and ought therefore by policy to 
be united into one imperium, in one center where the seat 
of government is.”44 The time had come for that do- 
minion or series of dominions to be consolidated into one 
empire by allowing the parliamentary representation of 
the dominions in that “‘one center where the seat of gov- 
ernment is.’ His plan embraced “sending out some con- 
siderable person” who should make a detailed report as to 
how the matter could be arranged.*® On the basis of this 
report he would have some centralized government erected, 
“founded on the basis of the whole, adequate and efficient 
to the whole,” which would include the granting to the 
colonies “a share in the legislature of Great Britain, by 
having knights and burgesses of their own election repre- 
senting them in parliament.’’*6 But the most striking 
feature of Pownall’s proposal was the insistence with 
which he repeated “that there does exist, in fact, in na- 
ture, a real union and incorporation of all these parts of 


43 James Otis. Vindication, etc. p. 23. 


* Thomas Pownall, The Administration of the Colonies, wherein their 
Rights and Constitutions are Discussed ae Stated, (London: 1768), p. xv. 


Sei bide) ps oes 
ibid. p. Xv. 


32. POLITICAL IDEAS AMERICAN REVOLUTION 


the British Dominions, which wants only to be avowed 
and actuated by the real spirit in which it moves and has 
its being.” 47 

After being relieved as governor of Massachusetts, 
Pownall retired to England, where as a member of the 
House of Commons he continued to the end to defend the 
rights and aspirations of those colonies which he knew so 
well. It is not fair to him to class him with all of the 
other Tories as unable to understand the American posi- 
tion. Ina sense he was quite in advance of some of the 
more eloquent and zealous champions of the American 
cause at Westminster, for he did not so persistently predi- 


cate the inferiority of the overseas dominions. To the - 


end he advocated such a union between Britain and the 
colonies as was well known and amply precedented in 
English constitutional history, “in a like manner as was 
done in the union of the two parts of the present king- 
dom,” i.e., England and Scotland with their act of union 
of 1707 whereby representatives for Scotland appeared at 
Westminster in the Parliament of Great Britain. The 
only alternative was to govern the colonies by military 
occupation and to be prepared to hold America in a con- 
stant state of siege, which would cost more than the col- 
onies were worth to the mother country and finally ruin 
both. Pownall’s plan was frankly one of what would 
today be called federation, for, although he emphasized 
the subordinate position of the calonial legislatures as was 
fitting in a federal commonwealth, the co-equality of all 


the dominions with the kingdom of Great Britain would — 


be secured by some contractual act of union which could 
not, “according to the law of nations, of justice and policy 
be altered without the consent of the parties.” 48 
Pownall’s ideas seem to have been the fruit of his exper- 
ience as a colonial administrator. The Stamp Act afford- 
ed a similar opportunity for his successor, Governor 
Francis Bernard, to make some practical suggestions, but 
# Tbid., p. 163. Pownall’s views had been criticized as those of a de- 


luded visionary. He replied, “I wish those declarations of power with 
which we mock ourselves may not be found the more dangerous delusion.” 


48 Feb. 20, 1775, Hansard, Parliamentary History, XVIII. 326-7. 


THE BRITISH IMPERIAL PROBLEM 33 


Bernard had presented his solution in the shape of a plan 
for inter-colonial union which would have consolidated 
the colonies into a few large provinces confessedly subject 
to the supremacy of Parliament as then constructed, and 
would have created an American nobility. The form of 
government in the colonies was to be made uniform, and 
such traces of the federal idea as appear in Bernard are 
very faint indeed.4® Nevertheless, the Stamp Act con- 
troversy was not wholly barren in this regard, for from 
England came the suggestion that after all the only 
means of endearing a son to his father was to give him a 
proper share in his fortune and also in the management 
of family concerns upon his coming to maturity. Hence 
“if every colony were to choose such representation as 
they should think proper, as our counties in England do, 
and that such representatives were in every respect to 
have the same privileges as our members of counties, they 
would be on an equal footing.” The scheme involved a 
certain degree of indirect election and was not very clearly 
thought out, but it did manifest a willingness to consider 
the idea of adding some new members to Parliament “‘to 
represent the colonies in the Parliament of England,’ and 
hence may be said to reflect the federal idea.®° 

After all this was an obvious type of solution to fair- 
minded Britons who understood English liberty as the 
Americans interpreted it, yet who could not forego the 
idea that somehow England should be the center of the 
federal commonwealth. Similar to this was Francis 
Masseres’ scheme of imperial federation which appeared 
in 1770. Reasserting the supremacy of Parliament, yet 
acknowledging the fairness of the American contentions, 

# Francis Bernard, Select Letters on the Government of America and 


the Principles of Law and Polity applied to the American Colonies (Lon- 
don: 1774), p. 83. Written in 1764. 


50 The General Opposition of the Colonies to the Payment of the Stamp 
Duty and also a Plan for Uniting this Kingdom in such a manner as to 
make their Interests Inseparable from Ours for the Future, in a Letter 
to an M. P. (London: 1766), p. 33. Another plan dated in this same year 
is contained in the Dartmouth Papers. It proposed that each colony send 
representatives to Westminster, proportioned on population, but not to 
exceed four per colony. Manuscripts of the Earl of Dartmouth, Vol. II., 
American Papers: Hist. MSS. Commission. 14th Rpt., App. Pt. X., p. 51; 
vid. also Ibid., pp. 204, 244, 252. 


34 POLITICAL IDEAS AMERICAN REVOLUTION 


he suggested that eighty members be sent to the House 
of Commons from overseas, duly apportioned to the North 
American and West Indian colonies. These representa- 
tives were to bear the title of Commissioners of the Col- 
onies of America, and they were to have the right to sit 
in the House of Commons, to debate, and to vote. Sucha 
plan, he asserted, would beyond question transform the 
Parliament at Westminster into an imperial federal parlia- 
ment which might equitably claim jurisdiction over all the 
British dominions in Europe and America. The proposal 
of this author even comprehended the division of subjects 
of jurisdiction, with superior and subordinate legislatures, 
each with its exclusive sphere of activity, thus limiting the 
supremacy of the imperial body by the rights reserved to 
the several component states of the empire. The parlia- 
ment at Westminster was thus to sit in two separate and 
distinct capacities: in one, with only members from Great 
Britain present, it would act as a local legislature for that 
country. In the other, with the “Commissioners of the 
Colonies of America” present, parliament should be the 
imperial and federal parliament of the British Empire. 
No imperial act could be passed without giving the colonial 
commissioners time to know that parliament was changing 
from one capacity to the other.®! 

Curious as it may seem, it is almost as difficult to ex- 
tract any consistent doctrine from Benjamin Franklin as 
it is to get such a thing from the unfortunate Otis, whose 
mental weakness in his later years makes it difficult to tell 
just when his mind began to go astray. No such excuse 
can be made for Franklin’s inconsistencies and contra- 
dictions. Perhaps it is an easy and entirely a fair thing 
to say that just herein lay Franklin’s greatness: he did not 
worship the jewel of consistency. He changed his opin- 
ions as he learned, and he never stopped learning. Con- 
sequently when in 1754 we hear him say that “uniting the 
colonies more intimately with England, by allowing them 
representatives in parliament’? would in fact “be very ac- 

51 Francis Masseres, sometimes spelled, Maseres, Considerations on the 


Expediency of Admitting Representatives from the American Colonies to 
the British House of Commons: (London: 1770). 


THE BRITISH IMPERIAL PROBLEM 35 


ceptable to the colonies,” we need not take this as his final 
opinion. At any given time he was likely to be consistent, 
and he argued now that such a parliament, representing 
the American Dominions as well as Great Britain, should 
start off with a clean slate, with the acts of trade and 
navigation repealed, and that it should then re-enact only 
such of those acts as the parliament composed of repre- 
sentatives of all the dominions might deem acceptable.5? 
More than a decade later, with the controversy leading 
to separation in full swing, we find Franklin still clinging 
to the idea of imperial federation, ‘fully persuaded that 
a consolidating union, by fair and equal representation of 
all parts of this Empire in parliament is the only basis on 
which its political grandeur and prosperity can be 
founded.”°®* But he perceived by that time that Britain 
“is indeed too proud to propose admitting American rep- 
resentatives to Parliament, and America is not so humble, 
nor so fond of the honor to petition for it.”°4 In the 
midst of the controversy, while he was in England, one 
of his English friends sent him a scheme for admitting 
overseas members to the Parliament upon which he ex- 
pressed the opinion that the plan was a wise one, but 
mournfully commented that the English would hardly 
come to that conclusion and invite Americans to sit at 
Westminster before it was too late to attempt any such 
thing.©> Yet as late as 1767 he held to the idea of a 
“consolidating union,’ based on the principle of what is 
now called imperial federation. 

- But one of the most comprehensive of all the schemes 
for imperial federation was a “Plan of Union by Admit- 
ting Representatives from the American Colonies and 
from Ireland into the British Parliament.’ In this plan 
all of the British dominions in the western hemisphere, 
from Canada to the further corner of the Caribbean Sea, 
were to send representatives to Westminster. The thir- 
7 eee Shirley, Dec. 22, 1754, Franklin’s Works, (Bigelow Ed.), 
= ae Lord Kames, April 11, 1767, Franklin’s Works, (Bigelow Ed.), 


TES John Ross, December 13, 1767, Franklin’s Works, (Bigelow Ed.), 
5 Jan. 6, 1766. Franklin’s Works, (Bigelow Ed.), III. 402-3. 


36 POLITICAL IDEAS AMERICAN REVOLUTION 


teen disgruntled colonies in North America, the Floridas, 
Barbadoes, St. Kitts, Antigua, the Bahamas, the Bermu- 
das, and all the rest down to St. Vincents and Tobago 
were grouped according to population so that the largest 
sent four members each and the three smallest combined 
to send one member. Nor was this all, for the scheme 
took in Ireland, providing for both burgesses and knights 
of the shire. Provisions were made for corresponding 
increments to the House of Lords, and the body thus con- 
structed of overseas lords and commons was made inde- 
pendent of all the ordinary dissolutions of Parliament, six 
months being allowed for the members to assemble after 
any given election. This project distinctly reveals the 
idea of a supreme legislature and introduces the new con- 
cept of such a legislature limited by the instrument cre- 
ating it. In other words, the idea of a limited supreme 
legislature was here emerging, an idea which the English- 
man with his concept of the unlimited power of Parlia- 
ment found it so hard to grasp.*® 

The suggestion of Samuel Clay Harvey, made in the 
London Publick Ledger in January of 1775, is ingenious, 
if nothing else. He proposed to Lord North that the 
difficulty lay in finding some scheme “to remove the cause 
of the contention without subjugating the Americans on 
one hand or impairing the supreme authority of the Legis- 


50The proposal of “Amor Patriz”’ is found on a broadside which, 
according to Sabin, was circulated in the colonies about 1770. The copy 
I have used is in possession of the Library Company of Philadelphia. In 
volume IV, page 3, of Bigelow’s edition of Franklin’s works is this same 
proposal printed in a footnote with Bigelow’s comment, ““Among Dr. Frank- 
lin’s manuscripts is a paper entitled ‘A Plan of Union by Admitting 
Representatives from the American colonies and from Ireland into the 
British Parliament.’ It is not in his hand-writing, and appears to have 
been communicated to him by some other person.” Bigelow then cites 
the letters to Kames and Ross, cited supra, which discuss very generally 
the subject of imperial federation. More interesting, however, is the 
letter, cited supra, of January 6, 1766, written in reply to an unknown 
person, who had sent Franklin a draft of some scheme of imperial feder- 
ation which is not found with the original letter. The coincidence of a 
letter to Franklin inclosing some such draft and the existence of such 
a draft, not in Franklin’s handwriting, is one worth noting. Meanwhile 
the existence of the same thing in printed broadside form testifies to the 
fact that it had wider circulation than a mere correspondence between 
two friends. ‘‘Amor Patrie”’ was Thomas Crowley, who made _ several 
similar suggestions to the Earl of Dartmouth. Manuscripts of the Earl 
of Dartmouth, American Papers, Vol. II. Hist. MSS. Commission, 14th 
Rept., App. Pt., X. 34, 38, 184, 196. 


THE BRITISH IMPERIAL PROBLEM 37 


lature, by an impolitick yielding, on the other.’’ His plan 
was to grant the Americans representation at Westminster 
by apportioning to the colonies, including Canada and the 
larger West Indies, the same number of votes in Parlia- 
ment as was held by the sum of the county representation 
in England. Then the Americans were to be accorded the 
privilege of electing whomsoever they pleased among those 
already sitting in Parliament as representatives of the 
counties, to represent them also. To the smaller West 
Indian islands were assigned the four members from Lon- 
don. By this scheme each county and London member of 
Parliament was to have a double vote in “business apper- 
taining to the colonies,” “one as an English and one as an 
American member.’ The scheme was, of course, de- 
signed to give the county members greater power in Par- 
liament than the borough members.°? 

Franklin was right in his forecast that Britain would 
not bring herself officially to offer imperial federation 
until it was too late. Chatham’s last effort was devoid 
of any suggestion of it, and as for Burke’s last minute 
attempts at reconciliation, there is his recorded opinion 
that a “useful representation is impossible; I am sure it is 
not desired by them [i.e., the Americans] nor ought it, 


‘7 This plan is reprinted in Force, American Archives, 4th ser., I. 1204. 
Another interesting plan appeared in New York after the signing of the 
French Alliance, but before Yorktown, which provided for a federalized 
but decentralized political union. The institutions already existing, the 
British Parliament and the American Continental Congress, were to con- 
tinue to function as they were at that time (1780?). The latter was 
to have added to it an upper House of Lords, appointed by His Majesty, 
but from among Americans. A Viceroy with a veto should reside in 
America. In addition to these bodies there should be a ‘“‘National Parlia- 
ment composed of the Lords and Commons of Great Britain, Ireland 
and America, with an authority to manage and regulate the general 
affairs and interests of the empire, leaving to the distinct legislature of 
each of these great component parts of the state, the power ofi taxation, 
and the regulation its own internal polity.”” The whole was to be con- 
firmed by articles of agreement between the two. The Alarm, or a Plan 
of Pacification with America. (New York: 178-), pp. 4-6, reprinted in the 
American History Leaflets, No. 14. This idea of solving the problem by 
articles of compact was natural enough in the day of the compact theory. 
See A Few Political Reflections submitted to a Consideration of the British 
Colomes by a Citizen of Philadelphia, (Philadelphia: 1774), which suggests 
that “matters are now become reduced to such a crisis that it becomes abso- 
lutely necessary to form a charter of conmexions.” See also John, Day’s 
Remarks on American Affairs, (London: 1774), “A compact and other 
necessary regulations to support it should be entered into as expeditiously 
as the importance of the subject could admit.” 


38 POLITICAL IDEAS AMERICAN REVOLUTION 


perhaps, by us, but I abstain from opinions.”®* Lord 
Howe’s efforts at reconciliation just after the battle of 
Long Island were too patronizing to offer such a thing and 
were properly met with the American reply by Franklin, 
“Long did I endeavor, with unfeigned and unwearied zeal, 
to preserve from breaking that noble China vase, the Brit- 
ish Empire, for I knew that once being broken, the sepa- 
rate parts could not retain even their share of the strength 
or value that existed in the whole and that a perfect re- 
union of those parts could scarce ever be hoped for.” °°? 
From the time of the failure of this mission nothing more 
was done until the defeat and surrender of Burgoyne and 
the fact of the French alliance sobered the ministry into 
proposing in 1778 to a bewildered and dejected House of 
Commons a new scheme for reconciliation. In conse- 
quence, the Carlisle Commission went out to America 
authorized to concede every point in the dispute with the 
colonies except independence and to offer them a share 
in the government based upon imperial federation and a 
provision for “agents from the different states who shall 
have the privilege of a seat and voice in the Parliament 
of Great Britain.”®° But it was too late. 

The idea, then, of solving the imperial problem by per-~ 
mitting the Americans to elect members to sit at West- 
minster and granting them a share in the management of 
the empire by their participation in its chief legislative 
body seems to have been presented in the years before the 
Revolution. No generally accepted term, such as the 
modern one of “imperial federation,’ seems to have been 
current at that time to express the idea for which the mod- 
ern term has been coined. Nevertheless, it is fair to say 

58 Hansard, Parliamentary History, XVII. 519. That he was right, see 


resolution of First Continental Congress, October 14, 1774, in Journals of 
the Continental Congress (Ford Ed), I. 63, 68. 


5° The Franklin-Howe Correspondence in 1776, reprinted in Sparks edi- 
tion of Franklin’s Works, V. 101 ff. 


®° The principal documents in this matter, together with the offer made 
by the commission are in the Annual Register for 1778, pp. 329, 336. But 
the instructions given the commission in this regard entitle us to question 
their sincerity and to state with a fair degree of certainty that no true 
scheme of Imperial Federation could ever have been based on such in- 
structions. MSS. of the Earl of Carlisle: Hist. MSS. Commission, 15th 
Rept., App. Pt. VI. pp. 322-333. 


THE BRITISH IMPERIAL PROBLEM 39 


that the ideas expressed were not merely similar in their 
aims to the more recent ones: they were the same. Hence, 
‘although one may not attribute to Thomas Pownall, for 
example, the expression “imperial federation,” yet he 
should be accredited with a concept which only that ex- 
pression will adequately describe. What in fact were 
these schemes described in the latter part of this chapter 
if they were not what the terminology of Britannic poli- 
cies has since come to know as “imperial federation”? 


CHAPTER III 
THE COMMONWEALTH OF NATIONS 


The twentieth century has revived, rather than origi- 
nated, the idea that the British Empire is not one state 
but a league of states, not one nation but a commonwealth 
of nations.1. Our ordinary political vocabulary is a poor 
thing at best because of the different senses in which the 
same word is used by different, although fairly authorita- 
tive writers. In dealing with the British imperial prob- 
lem as it emerged in the eighteenth century, current terms 
were inadequate, and the twentieth century finds condi- 
tions in that respect little improved. At the outset it is 
well to get rid of certain popular distinctions of German 
origin which seem to have a considerable grip upon Eng- 
lish and American political scientists. The American 
aspect of the British imperial problem is only confused by 
references to the ‘‘Staatenstaat,” the “Bundestaat,” and 
the “Staatenbund.” Why indeed should those terms be 
used? The American Revolution was but a stage in the 
development of a politically-minded people toward an ideal 
of self-government according to law, a development which 
began centuries ago in England. Is there not something 
a little incongruous about summoning to throw light on the 
story of the British Empire the nomenclature of a people 
who waited till the twentieth century before they sloughed 
off ideas which the English and Americans outgrew in 
1688? Yet there are even better reasons for striking out 


1“T think we are inclined to make mistakes in thinking about this group 
of nations to which we belong, because too often we think of it merely 
as one state. The British Empire is much more than a state. I think 
the expression ‘empire’ is misleading, because it makes people think we 
are one single entity, one unity, to which the term ‘empire’ can be applied. 
We are not an empire. Germany is an empire, so was Rome, and so 
is India, but we are a system of nations, a community of states, and 
nations, far greater than any empire which has ever existed; and by using 
this ancient expression, we really obscure the real fact that we are larger 
and that our whole position is different, and that we are not one nation, 
or state or empire, but a whole world by ourselves, consisting of many 
nations and states, and all sorts of communities under one flag.” Gen. 
J. C. C. Smuts to both Houses of Parliament, May 15, 1917. 


[40] 


THE COMMONWEALTH OF NATIONS 4] 


for new terms. The “Staatenstaat’” is confessedly only 
the “Holy Roman Empire,’ which will hardly serve as a 
prototype for a league of free nations.2, Moreover, the 
“Staatenbund” and the “Bundestaat” are nothing but the 
“confederation” and “federal union” of our own vocabu- 
lary, and all four are alike inadequate to the subject with 
which we are dealing. There is no use trying to place the 
Britannic Commonwealth of Nations in a class with the 
Germanic Confederation of 1816-66, as would inevitably 
be the result of using the expressions “Staatenbund” or 
“confederation.” As to the “Bundestaat” or “federal 
union,” those terms express the kind of political union 
found in several of the component parts of the Britannic 
Commonwealth separately, and are inadequate to connote 
the whole.? That entity which history knows as the Brit- 
ish Empire is the result of growth in which English work 
and English experience have certainly played a larger part 
than the work or experience of any other people. Then 
why not use English words to express the relationship? 
The Scotch-American James Wilson certainly did not 
have the latest stage of the evolution of the British Em- 
pire in view when he coined the expression “Common- 
wealth of Nations,” but he did have in mind such a politi- 
cal concept as will justify the adoption of that term as an 
adequate one to describe the particular form which the 
more enlightened colonial statesmen of the empire were 
trying to visualize in the years between 1765 and 1775. 
This, then, is the third of the concepts of the nature of 
the connection between Great Britain and her American 
colonies held in the eighteenth century. We find such 
men as John Adams, James Wilson, and Thomas Jefferson ~ 
thinking toward this idea. Reserving the first named for 
a separate chapter, we shall in this one consider the latter 
two, and it is believed that none will deny them a place 


2“Der eigentliche typische Charakter des Staatenstaates ist in dem al- 
teren Deutschen Reich ausgespragt.” H. Schultze, Lehrbuch des Deutschen 
Staatesrechtes (Leipzic: 1886), p. 44. Cf. G. Jellinek Von der Staatsver- 
bindungen, p. 137; J. W. Garner, Intro. to Polit. Sci., p. 165; A. B. Hart, 
Intro. to Study of Federal Government, p. 19. 


®* Canada or Australia is a “federal unien” or ‘“Bundestaat”’ in itself. 


42 POLITICAL IDEAS AMERICAN REVOLUTION 


among the more profound thinkers of the Revolutionary 
period. Before taking up their ideas in detail, let us con- 
sider some other and earlier figures, men who were wrest- 
ling with the problem of how a so-called “sovereign” state 
could be a member of such a league of states as would 
assure concerted action of people with common ideals in 
times of international crises and yet, at the same time, 
retain its separate identity and individuality. The concept 
is not an easy one to grasp, and it has plagued the wor- 
shippers at the shrine of sovereignty both early and late. 
However, notwithstanding the distress to a logical and 
rational mentality caused by the contradictions and incon- 
sistencies involved in working out this theory, the enlight- 
ened mind must needs bring to play other tools besides 
logic in the problems of law and politics. It was a poet 
of the Britannic Dominions, and not an Anglo-Saxon, who 
said, “A mind all logic, like a knife all blade, cuts the 
hand that uses it,’* and this thought should be ever pres- 
ent in an examination of the plans for what today we call 
British imperial partnership. 

It requires a statesman who is at the same time a close 
student of government to express clearly the ideas of this 
group of thinkers. Perhaps by none were they more 
clearly set forth than by James Madison, one of the closest 
students of government who ever graced the Presidential 
chair. “The fundamental principle of the Revolution,” 
said he, “was that the colonies were codrdinate members 
with each other, and with Great Britain, of an empire 
united by a common executive sovereign, but not united 
by any common legislative sovereign.”® This is, in short, 
the whole essence of the theory of “imperial partnership,” 
of “the commonwealth of nations,” or whatever other term 
one chooses to employ to express the relationship actually 
existing between Great Britain and the dominions at the 

4 Tagore. 


5“The legislative power was maintained to be as complete in each 
American parliament, as in the British parliament, and the royal pre- 
rogative was in force in each colony by virtue of its acknowledging the 
king for its executive magistrate, as it was in Great Britain, by virtue 
of a like acknowledgement there. A denial of these principles by Great 
Britain and an assertion of them by America produced the revolution.” 
Madison’s Work’s (Hunt Ed.), VI. 373. 


THE COMMONWEALTH OF NATIONS 43 


beginning of the twentieth century. Although some mem- 
-bers of this group were inclined to let Westminster con- 
tinue to function as a “common legislative sovereign” or 
imperial parliament, yet it was with the distinct under- 
standing that this arrangement was a convenience, not a 
right, and that the powers of this parliament be strictly 
limited.® 

It is, then, not entirely correct to say that the plans pro- 
posed and the task at which men have labored in an effort 
to solve the British imperial problem have been exclusively 
directed toward imperial federation, which, as we ob- 
served in the last chapter, involves sending members to 
parliament from the four corners of the earth.?7 “Im- 
perial partnership” is an alternative with a new name, but 
it is not a new alternative.8 Unfortunately for the em- 
pire, those men who had conceived the idea most clearly 
left off in the midst of their efforts to solve the British 
imperial problem and turned their attention to the allied 
task of constructing a government for what has since be- 
come the United States of America, thus depriving the 
British Empire of the benefit of their thought. 

Among these men was Richard Bland of Virginia, who 
in 1766 published what Jefferson lauded as the “first pam- 
phlet on the nature of the connection with Great Britain 
which had any pretension to accuracy of view on that sub- 
ject.”° The main proposition was simple enough: 

© Cf. John Adams, infra. : 

7E. g., G. B. Adams in his British Empire and a League of Peace, 
(1919), p. 5, says ‘‘the plans proposed have been exclusively along a single 
line. The task at which men have labored’ has been to find some means 
for the representation of the outlying dominions in a central parliament 
of the empire, either the then, existing parliament of the British Isles, 
or in an imperial parliament.’”? This author’s essay is acute and stimu- 
lating, and his conclusions seem so entirely in accord with the imperial 
partnership idea that a recognition of the men who envisaged the imperial 
problem along those lines would really have strengthened his position and 


have confirmed his sound conclusions. 

8A. B. Keith, Imperial Unity and the Dominions, (1916), pp. 530-88, 
are devoted to this term, as applied to the modern aspect of the situation. 

9 Jefferson went on to say of Bland: “He would set out with a set 
of sound principles, pursue them logically till he found them leading to 
the precipice which he had to leap, start back alarmed, then resume his 
ground, go over it in another direction, be led by the correctness of his 
reasoning to the same place and again back about and try other processes 
to reconcile right and wrong but finally left his reader and himself be- 
wildered between the steady index of the compass in their hand, and the 
phantasm to which it seemed to point.” Jefferson’s Works (Washington 
Ed.), VI. 485. 


44 POLITICAL IDEAS AMERICAN REVOLUTION 


“America is no part of the Kingdom of Great Britain.” 
Here is the germ of what is now styled “imperial part- 
nership.” If America was no part of the kingdom of 
Great Britain then what possible jurisdiction could a legis- 
lature which was exclusively the legislature of Great Brit- 
tain have over territory not a part of Great Britain? Bland 
lived at a time when the idea of the supremacy of Parlia- 
ment was as common as the idea of private property in 
public utilities was in the nineteenth century, and he could 
not give up that preconception, although he stood on the 
verge of the new era. Nevertheless, his work, by its very 
inconsistencies, shows the emergence of the new idea. 
While admitting the supreme power of Parliament, he 
contended that the King had certain prerogatives which 
he exercised independently of Parliamentary consent, and 
among them was the granting of permission to his subjects 
to remove to a new country upon certain stipulations, 
made by him and not by Parliament. Moreover, Bland . 
made it clear that the supremacy of the British Parliament 
was a thing limited by the provision of the British con- 
stitution. Here are the_roots of two ideas: first, that the 
King had other subjects than those represented at West- 
minster, and, second, that there are some things Parlia- 
ment cannot do. Reserving the latter idea for a future 
chapter, we have to notice here that the former was a per- 
fectly well known doctrine of British constitutional law.1° 

In England in 1765 it was perfectly well understood that 


1 Richard Bland, An Inquiry into the Rights of the British Colonies, 
(1766: Williamsburg, Va.), pp. 17, 18, 20, 22, 26. That he considered 
Virginia an equal partner with England in the British Empire is seen 
from the following: ‘‘In January, 1659, Sir William Berkeley was re- 
placed at the head of the government by the People, who unanimously 
renounced their Obedience to Parliament, and restored the Royal Authority 
by proclaiming Charles the 2nd King of England, Scotland, France, Ire- 
land and Virginia, so that he was King in Virginia some time before he had 
any certain assurance of being restored to his throne in England.” p,. 20. 
See also Bland’s “The Colonel Dismounted, or, The Rector Vindicated 
in a Letter addressed to His Reverence containing a Dissertation on the 
Constitution of the Colony’ (Williamsburg, Va.: 1764), of which L. G. 
Tyler remarks that Bland believed at that time that ‘“‘To all intents and 
purposes Virginia was a co-ordinate Kingdom with England.” L. G. Tyler, 
Leadership of Virginia in the War of the American Revolution, William 
and Mary Quarterly Historical Magazine, XIX. 26. The Colonel Dismounted 
ae is reprinted in the William and Mary Quarterly Historical Magazine, 
XIX, 31-41. 


THE COMMONWEALTH OF NATIONS 45 


there were at England’s doorstep some dominions which, 
while appendages of the crown, were not subject to the 
jurisdiction of the Parliament at Westminster. The 
Channel Islands and the Isle of Man are interesting ob- 
jects in the museum of British constitutional politics. In 
the very year in which the Stamp Act was passed the 
status of these islands was laid before Parliament, and 
the counsel for the Proprietors of the Isle of Man ex- 
plained that the island “is part of the crown but not of 
the realm of England; it is under allegiance to the King, 
but it is ruled by its own laws and customs.’”’!1_ The dis- 
tinction, therefore, which the colonials made so frequently 
between allegiance to the crown and allegiance to the 
realm was not a mere fiction of their own. In the debate 
on the repeal of the Stamp Act, Lord Camden had said, 
“Guernsey, Jersey and the Isle of Man are not yet parts of 
the Empire and have never yet been taxed.” 1? 

Closely related to the idea that the King had one realm 
in England, another in the Isle of Man, and others in 
America, was the thought that therefore the people of no 
one of the component parts of the empire should neces- 
sarily have any jurisdiction over those of any other part— 
i.e., in other words, “that the legislatures of Great Britain 
can have no more authority over them [the colonials] than 
the Parliament of Paris.” Inconceivable as this notion 
was to the loyalist Galloway, yet it was the normal result 
of the general proposition, and early in the decade before 
the Revolution we see it emerge in the query of Stephen 
Hopkins, “can it possibly be shown that the people of Brit- 
ain have a sovereign authority over their fellow subjects 
in America?’?8 For this governor of Rhode Island be- 
lieved the Britannic dominions to constitute an ‘‘Imperial 
State” consisting of “many separate governments, in which 
no single part, though greater than any other part, is by 
that superiority, entitled to make laws for, or to tax such 


4 Hansard, Parliamentary History, XVI. 34. February 15, 1765. 
2 Hansard, Parliamentary History, XVI. 169. 


18 Rights of the Colonies Examined: ,(Providence: 1765), reprinted as 
Grievances of the American Colonies Candidly Examined: (London: 1766), 
and in The Rhode Island Records, VI. 418. 


46 POLITICAL IDEAS AMERICAN REVOLUTION 


lesser part.” This assertion of the doctrine that the em- 
pire was an empire of co-equal states makes one curious 
to see what more the Rhode Islander thought on the sub- 
ject, and we are disappointed to find that Hopkins, like 
Bland, got to the verge of the new idea, and then “started 
back alarmed” at what he found, and admitted the “exist- 
ence of things of a general nature, quite out of reach of 
these particular legislatures,’ which he assigns to the 
jurisdiction of the British Parliament. After all the logi- 
cal result of the assertion that the legislature of one divi- 
sion of the empire could have no jurisdiction over that of 
another was to deny to Parliament the control even in 
strictly imperial concerns. But, as has been indicated, 
these men were not logical. Moreover, even in the twen- 
tieth century, we find colonial and dominion statesmen 
proclaiming their dominions autonomous, yet vigorously 
denying that this fact takes them out of the circle of the 
Britannic Commonwealth. The latter statesmen are no 
more logical than their American predecessors, and in 
fact the Americans merely represent an earlier stage of 
the evolution of the view held by the latter. Neither 
Bland nor Hopkins, however, got as far as making the 
practical proposal which Samuel Johnson of New York 
made in 1760. 

Johnson was no radical, nor, on the other hand, was he 
the arch conservative that his contemporary namesake, the 
great lexicographer, seems to’have been. He was one of 
those profound thinkers to whose writings one naturally 
turns in seeking for the roots of any great philosophical 
formula, such as those whose development we are endeay- 
oring to trace. Under the pseudonym of “Philanglus 
Americanus”’ this first president of what is now Columbia 
University suggested a colonial union with a viceroy and 
with a council composed of representatives from each col- 
ony in the union. This council was to meet annually in 
New York, under the presidency of the lord-lieutenant, 
or viceroy, “to represent and consult on whatever may 
contribute to the union and stability and good of the 
whole.” In this assembly “the common affairs of war, 


THE COMMONWEALTH OF NATIONS 47 


trades, etc., might be considered, and the confirming and 
negativing the laws passed by each government, the result 
to be confirmed or negatived” not by Parliament, but by 
the King. Such a scheme implied that the colonies should 
decide even those matters of trade and foreign affairs 
which most of the early statesmen were willing to grant 
to Westminster, and its author, seeing clearly that this 
was a long step in the direction of total independence, has- 
tened to make a pious qualification. Since the only danger 
was that of total separation, it would remain for the church 
to counteract this untoward event. This rather quaint 
and naive way of covering his retreat, while not as prac- 
tical as the suggestions of Bland and Hopkins, was thor- 
oughly consistent with Johnson’s position in colonial his- 
tory.1¢ A similar solution was proposed by Drayton of 
South Carolina, who wanted a “High Court of Assembly 
of North America” with powers similar to those subse- 
quently held by the Continental Congress.1® 

But it was not in America alone that such ideas were 
current, for in 1766 John Almon in London published the 
proposal sometimes attributed to Joshua Steele!® which 
entailed “leaving every part of the old system as it now 
is, that every kingdom or province should continue its 
parliament or assembly, or whatever form of internal gov- 
ernment it is possessed of, and defray all its expenses 
within itself,” showing at least the presence of the idea 
that the empire was an empire of separate political enti- 
ties. In addition, it was proposed to “superadd for union 
and utility of the whole, a new sovereign council, consist- 
ing of deputies from each province of the Great Common- 
wealth.’ An examination of this proposal suggests that 
here in embryo was the type of thing which a hundred 
years later developed into the Imperial Conferences ihe 
Great Council was strictly enjoined from meddling in the 


14 Documents Relating to the Colonial History of New York (N. Y.: 
1856), VII. 442-3. Cf. also Woodbridge Riley in Camb. Hist. of Amer. 
Tat., TSG: 

% Letter of a Freeman, (Gibbes reprint), p. 18. 


16 An English reformer. Both Sabin and Rich, in nis Ee Amer. Nova, 
I. 154, attribute this to him. Cf. Dict. Nat. Biog., LIV. 


48. POLITICAL IDEAS AMERICAN REVOLUTION 


internal affairs of any constituent dominion of the “Great 
Commonwealth,” and to those dominions was to be left 
the task of determining for themselves how they should 
raise their quotas of supplies and troops, much as was 
done in the World War in 1914. It would be difficult to 
say that the council was not a legislative body (making 
the scheme one of “imperial federation”), but it would be 
equally difficult to say that it was, and since the general 
spirit was to preserve the old system of separate king- 
doms, it seems fairer to include it among the earlier sug- 
gestions of imperial partnership.‘7 

But there is another reason for assuming that some per- 
sons in England must at least have been conversant with 
the ideas of more progressive Americans; during a large 
part of the time between 1765 and 1775 Benjamin Frank- 
lin was in London, talking. Franklin successively held ~ 
all three of the theories of the nature of the empire with 
which we are dealing, and he slipped from one to the other 
with the same ease that finally led him into an advocacy 
of total separation and independence. By 1769 he had 
apparently adopted the third theory, and the publication 
in England of some pamphlets which stated rather flatly 
the “our colonies” theory of colonial dependency provoked 
from him some delightfully explicit statements as to the 
nature of the empire. One pamphleteer, with a mental 
shudder, had complained, “If each assembly in this case 
were absolute, they would, it is evident, form not one 
only, but so many different governments, perfectly inde- 
pendent of one another.” In this conclusion Franklin 
acquiesced with pleasure, saying, “This is the only clear 
idea of their rea] present condition. Their only bond of 
union is the King.”18 For the colonies were not within 
the realm of England, or Great Britain, and hence, “the 
British state is only the Island of Great Britain; the Brit- 
ish legislature are undoubtedly the only proper judges of 


wJ. Steele, An Account of a Late Conienenee on the Occurrences in 
America in a Letter to a Friend. (London: 1766). 

18 Franklin’s Works: (Bigelow Ed.), IV. 309, Franklin comments on 
“An Inquiry Into the Nature of and Causes of the Disputes Between the 
British Colonies in America and Their Mother Country, (London: 1769). 


THE COMMONWEALTH OF NATIONS 49 


what concerns the welfare of that state ; but the Irish legis- 
lature is the proper judge of what concerns the Irish state, 
and the American legislatures of what concerns the Amer- 
ican states respectively. By the ‘whole empire’ does this 
writer [i.e., the author of the pamphlet to which Franklin 
is replying] mean all of the King’s dominions? If so the 
British Parliament should also govern the islands of Jer- 
sey and Guernsey and Hanover; but this is not so,’’!9 
Believing as he did that there could be a “dominion of the 
crown, not within the realm,”2° Franklin held that the 
English were “bewildering themselves by supposing the 
colonies within the realm, which is not the case, nor ever 
was,” for in fact the “Americans are without the realm 
and not of the jurisdiction.” Hence he was able to pro- 
claim with perfect consistency, “I am a subject of the 
crown of Great Britain,” while he denied the power of 
Parliament over the colonies, for, said he, ‘““America is 
not part of the dominions of England, but of the King’s 
dominions.”2! At this late date [1769] he still thought 
it practical to bring representatives from America to 
Westminster, but remarked, “the present mode of letting 
them govern themselves by their own assemblies is much 
preferable. They will be better governed, and Parlia- 
ment has business enough here with its own internal con- 
cerns,”/22 

Indeed Governor Bernard had not been very far wrong 
when early in the controversy he said, “it is my opinion 
that all the political evils in America arise from want of » 
ascertaining the relations between Great Britain and the 
American colonies.’ Nor was he far wrong in explain- 
ing the American position as being a claim “to be perfect 
states, not otherwise dependent on Great Britain than by 


2 Franklin’s Works, (Bigelow Ed.), IV. 317, 327. He wrote in reply 
to The True Constitutional Means of Putting an End to the Disputes Be- 
tween Great Britain and her American Colonies, (London: 1769). 

2 Franklin’s Works, (Bigelow Ed.), III. 490. 

21 Franklin’s Works, (Bigelow Ed.), IV. 312. 

2Franklin’s Works, (Bigelow Ed.), IV. 310. This idea was at least 
understood in England; Cf. An Apology for the Late Conduct of America, 
rp orgs Gazetteer, 7 April, 1774. Force, Amer. Arch., 4th ser. 


50 POLITICAL IDEAS AMERICAN REVOLUTION 


having the same King,” because all the colonies had “com- 


pleat legislatures within themselves.’ In such an em- - 


pire it was evident a hundred and fifty years ago, as it 
is evident today, that the King was a fiction, albeit a very 
useful one. Consequently it is not surprising that we find 
plans which suggest “superadding a council for the union 
and utility of the whole’ which would give the necessary 
popular sanction to fictitiously royal acts. One of the 
most detailed of these plans appeared after the Revolu- 
tion was under way. It included “not only a reconcilia- 
tion with the thirteen united provinces” but a “more firm 
union of Great Britain with the other colonies of Canada, 
the Floridas, Nova Scotia, etc.” The connecting admin- 
istrative link between the “independent nations” which 
composed the empire was to be a “great council of state” 
composed of delegates sent by the governments of the con- 
stituent nations, and their action was not to be final until 
confirmed by the “several parliaments” of the component 
nations. This fairly elaborate plan for better uniting the 
several kingdoms of the United Empire” was substantially 
a league of states whose chief administrative organ was 
to be not a government but a conference.?* 

The year 1774 found the necessity for a solution of the 
imperial problem so acute that numerous plans appeared 
looking toward a reconciliation between America and 
Britain. Not the least important among them was the 


suggestion of Joseph Galloway, of Philadelphia, who , 


shares with Thomas Hutchinson a leading place among 
American statesmen opposed to the Revolution. It would 
be unfair to Galloway to class him with the adherents of 
the doctrine of British overlordship and the believers in 
the supremacy of Parliament. He had a plan of recon- 
ciliation predicated upon the existence of a power which 
limited Parliament. He never reached the thought that 
the empire was a commonwealth of nations, for he be- 
lieved “the colonists are members of the British state, 


23 Barrington-Bernard Correspondence, 23 Nov., 1765, p. 96. 


24 Proposal for a Plan toward Reconciliation and Reunion with the Thir- 
teen Provinces in America, and for a Union with the Other Colonies by 
One of the Public, (London: 1778), pp. 1, 3. 


= 


THE COMMONWEALTH OF NATIONS 51 


and owe obedience to its legislative authority.” But 
neither was he an imperial federationist, for he could not 
but think that to divide the authority of Parliament be- 
tween superior and subordinate jurisdictions would oper- 
ate to “weaken and confound the operations of the sys- 
tem and to subvert the very end and purpose for which 
it was formed.” Perhaps Galloway has no claim to a 
place in this chapter. Nevertheless, he did present to the 
first Continental Congress a scheme for “Accommodation 
on Constitutional Principles,’ which rejected the possi- 
bility of colonial representation at Westminster and pro- 
posed a “Plan of union between Great Britain and the 
colonies” which merits examination as a scheme upon 
which “imperial partnership’”’ might have been built, if not 
as a scheme of “imperial partnership.” It is a matter of 
common knowledge that the fundamental acts upon which 
the political constitution of the great self-governing 
dominions of the Britannic Commonwealth now rest were 
originally passed by the Parliament at Westminster. But 
this theoretic admission of the overlordship of the Parlia- 
ment of Great Britain has not prevented the norma] de- 
velopment of the dominions to their present status in 
which Westminster could hardly take back what in theory | 
it formerly granted. Galloway’s plan called for a Grand 
Council chosen by “the representatives of the people of 
the several colonies in their respective assemblies,’ which 
together with a president-general appointed by the King 
should constitute a “government.” This government 
should meet each year, and the Grand Council should 
exercise for America “al] the rights, liberties and privi- 
leges as are held and exercised by and in the House of 
Commons of Great Britain.”’26 The president-general 
was to be the chief executive, should possess a veto power, 
and, together with the Grand Council, was to “hold and 
exercise all the legislative rights, powers and authorities 


25 Joseph Galloway, A Candid Examination of the Mutual Claims of Great 
Britain and the Colonies, by the Author of Letters to a Nobleman on the 
sine itd American War, (London: 1780, reprinted from New York: 

» Pp. a 


26 Journals of the Continental Congress, (Ford Ed.), I. 43 ff. 


52 POLITICAL IDEAS AMERICAN REVOLUTION 


necessary for regulating and administering all the general 
police and internal affairs of the colonies, in which Great 
Britain or the colonies, or any of them” should be in any 
way concerned. The colonial union government should 
exercise this colonial jurisdiction jointly with Parliament, 
and, in the case of colonial affairs, each should have a 


veto on the acts of the other. Such a plan would havew 


made possible the avoidance by the colonials of the ob- 
noxious acts which precipitated the crisis and would have 
given room for the natural development of self-govern- 
ing communities such as has taken place since 1850 else- 
where in the Britannic dominions. 

The biographer of Thomas Hutchinson, the other great 
loyalist, has expressed the opinion that that statesman 
forecasted the present colonial system of the British Em- 
pire. The implication—and not an unreasonable one—is 
that Hutchinson had an idea of the nature of the empire 
upon which it might have been possible to construct the 
present system.?” The justification of this view is seen 
in Hutchinson’s insistence that whatever the measures 
taken “to maintain the authority of Parliament,” Parlia- 
ment should accompany them with a “declaration that it is 
not the intention of Parliament to deprive the colonies of 
their subordinate power of legislation, nor to exercise the 
supreme legislative power, except in such cases and upon 
such occasions as an equitable regard to the interests of 
the whole empire shall make necessary.”28 All this is 
fair enough, but the trouble with Hutchinson, as with Gal- 


loway, is that he insisted upon being logical. The su- 


premacy of Parliament was and, in the twentieth century, 
still is, the logical thing in the absence of other imperial 
machinery, but it betrayed evidence of poor taste and in- 
discretion to say so. Hutchinson could not refrain from 
saying so, and even in his “Vindication” he insisted that 
“Britain and its colonies are alike dependent on the su- 
preme authority of the whole empire,” and to him that 


27. K. Hosmer, Life of Thomas Hutchinson, (1896), pp. 137, 261. 
28 Mass. Arch. Hist., XXVI. 313, quoted in Hosmer, supra, p. 137. 


THE COMMONWEALTH OF NATIONS 53 


authority was “The King, the Lords and Commons.”?9 
We may observe that the expression “its colonies,” like 
“our colonies,” is hardly the mark of the Britannic states- 
man.?° 

The last year of the old British Empire’s peaceful ex- 
istence witnessed the publication of the works of John , 
Adams, James Wilson, and Thomas Jefferson on the na- | 
ture of the empire, and all three seem to have come to the / 


conclusion that the “commonwealth of nations” was the/~ 


only tenable theory. Jefferson’s work is well known, con- 
taining, as it does, much of the language which subse- 
quently found its way into the Declaration of Indepen- 
dence. It is, however, questionable whether the works 
of the two prospective Presidents of the United States can 
touch the work of James Wilson for clearness of vision, 
accuracy of analysis, or consistency of presentation. The 
“Considerations on the Nature and Extent of the Legisla- 
tive Authority of the British Parliament’?! presents in its 
very title the core of the imperial problem at that time. 
The opening sentence repeats it: “No question can be more 
important to Great Britain and the colonies than this— 
does the legislative authority of the British Parliament 
extend over them?’ Wilson answered in the negative 
but, loyal to the idea of the Britannic Commonwealth, he 
hastens to add, “a denial of the legislative authority of 
the British Parliament over America is by no means in- 
consistent with that connection which ought to subsist be- 
tween the mother country and her colonies.”’32. That con- 
nection did not involve the ascendancy of the mother 
country; indeed, “the superiority of Great Britain over 
the colonies ought to be rejected” * for the “Commons of 
Great Britain have no dominion over their equals and 
fellow subjects in America.” The distinction between 
allegiance to and dependency on the crown and allegiance 


2? Diary and Letters of Thomas Hutchinson, (1884), I. 576; Strictures 
upon the Declaration of the Congress at Philadelphia, (London: 1776). 


30 Cf. Sir Richard Jebb, Britannic Question, p. 71. 
31By James Wilson (Philadelphia: 1774). 

® Wilson’s Works, (Philadelphia Ed., 1804), III. 236. 
%3 Thbid., it, 237. ' 


54 POLITICAL IDEAS AMERICAN REVOLUTION 


to and dependency on the realm or Parliament receives 
at Wilson’s hands a treatment which is certainly illumi- 
nating and paves the way relentlessly for the final con- 
clusion “‘that all the members of the British Empire are 
distinct states, independent of each other, but connected 
together under the same sovereign, in right of the same 
crown.”°4 In reply to the argument that there must be 
some superior superintending power to regulate the trade 
of the British Empire, his answer is both keen and signifi- 
cant. First, “it has been the opinion of some politicians, 
of no inferior note, that all regulations of trade are use- 
less; that the greatest part of them are hurtful; and that 
the stream of commerce never flows with so much beauty 
and advantage as when it is not diverted from its natural 
channels.” But since he was a sufficiently practical man 
not to let the dream of universal free trade carry him too 
far, he suggested that the power of regulating trade be 
entrusted “to the king, as part of his royal prerogative.” 
One could wish for an elaboration of this point, as the 
colonials understood far too well the character of the Brit- 
ish government as a limited monarchy to attribute despotic 
powers to George III. Wilson seems to have had in mind 
a distinction between the King in his imperial and in his 
royal capacities; in the latter capacity the King, he be- 
lieved, was inextricably associated with the ministry of 
Great Britain. Whether such a distinction would have, 
if understood, led to the calling of an imperial conference 
of ministers from all parts of the empire, we cannot say, 
but we do know that six months after the publication of 
the “Considerations,’ Wilson made a public address in 
which he said, ““We do not send members to the British 
Parliament: we have parliaments of our own”,?° and “The 
distinction between him [the King] and his ministers has 
been lost: but they have not been raised to his situation: 
he has sunk to theirs.”3 Taken together, his utterances 
certainly indicate an unwillingness to concede that the 


* Tbid., III. 241. 


% Speech delivered in the Convention for the Province of Pennsylvania, 
(Phila: Jan: 1775), Works, III. 247, 259. 


% Works, III. 269. 


THE COMMONWEALTH OF NATIONS 55 


American dominions were anything less than equal part- 
ners in the empire, with an equal unwillingness to break 
away from the allegiance to the Britannic idea. It has 
been said of James Wilson that he represents ideas far in 
advance of his own day, ideas which the world is only just 
beginning to understand. Perhaps his conception of the 
nature of the British Empire is another instance of this 
prevision.3* 

Jefferson’s position, though not as carefully worked out 
as Wilson’s, was quite similar. His “Summary View of 
the Rights of British America” took the ground which 
from the beginning he had thought “the only orthodox and 
tenable one, which was that the relation between Great 
Britain and these colonies was exactly the same as that of 
England and Scotland after the accession of James and 
until the union, and the same as her present relations with 
Hanover, having the chief executive, but no other neces- 
sary political connection.”4° Parliament was, in his way of 
thinking, “‘only the legislature of one part of the Empire.” 4! 
What right “‘one free and independent legislature” had to 
“take upon itself to suspend the powers of another, free 
and independent as itself,” Jefferson could not conceive.*? 
The position accorded the King was substantially the same 
as that which Wilson gave him: he was the “common sov- 
ereign, who is thereby made the central link, connecting 
up the several parts of the Empire.’ 4% In this doctrine 
Jefferson apparently never got anyone in Virginia to agree 
with him except George Wythe, who “concurred in it from 
the first dawn of the question, ‘What is the political rela- 


tion between us and England?’ Our other patriots, Ran- . 


7 Cf. L. H. Alexander in N. Amer. Rev., CLXXXIII. 971. Cf. Wilson’s 
view in 1790: “‘Two sovereign states may employ the same executive magis- 
trate, or bear allegiance to the same prince without dependence on each 
other, and each may retain all its national rights free and undiminished. 
This last, also, as shall hereafter be shown, was the case of Great Britain 
and the American colonies before the political connexion between them 
was declared to be dissolved.’’ Wilson’s Works, I. 362. 


*®The “Summary View” appears in Jefferson’s Works, (Washington 
Ed.), I. 122. Cf. also his Autobiography: Works (Washington Ed.), I. 8. 


4 Jefferson’s Works, (Washington Ed.), I. 125. 
Seibid’s I 131. ; 
ibid, 1.127. 


56 POLITICAL IDEAS AMERICAN REVOLUTION 


dolph, the Lees, Nicholas and Pendleton stopped at the 
half-way house with John Dickinson, who admitted that 
England had a right to regulate our commerce and lay du- 
ties on it for the purpose of regulation, but not for raising 
revenue.” #4 

What Jefferson was doing for the Virginians, what 
Adams did for the people of Massachusetts, and what 
Wilson did for Pennsylvanians, was done for the North 
Carolinians by James Iredell. In his address “To the In- 
habitants of Great Britain” in 1774, he made clear his con- 
ception of the nature of the empire in which the King was 
the executive head of many co-equal legislatures in as 
many co-equal political communities. As it then existed, 
he believed the Empire lacked any one supreme power, 
such as Parliament aspired to be, but he insisted, “we are 
ready at any time to enter into fair negotiations by means 
of which to concert a plan of cementing the general in- 
terest of the Empire upon a broad basis, and securing 
a proper union of counsel and authority, and the individual 
freedom of each member of the Empire, so far as is con- 
sistent with general welfare.” This is scarcely the 
language of one who believed that the Empire as it then 
existed was in fact any more than what the most advanced 
modern thinkers contend that it is.4® 

In this same year, 1774, two very interesting English’ 
liberals made suggestions which betoken the existence of 
a more enlightened sentiment in England than was mani- — 
fested in Parliament. John Cartwright was one of the» 
earliest agitators for Parliamentary reform, and so it is 
not surprising to find that he wrote a pamphlet which 
bore the interesting sub-title, “Arguments to prove that 
not only in taxation, but in trade and manufactures and 
government, the colonies are entitled to an entire inde- 

“4 Tbid., I. 8. Wythe believed “that we were co-ordinate ‘nations’ with 
Great Britain and Hanover.” See Jefferson’s Works, I. 113. Consequently 
Channing is not quite accurate when he says ‘Imperial Federation, not 
dependency or democracy was in Jefferson’s mind.’”? E, Channing, Hist. of 
the United States, III. 183. The fact was that neither imperial federation, 


nor independence, but what in this chapter has been called ‘‘imperial partner- 
gp in a commonwealth of nations, was what Jefferson was thinking out. 


#G. L. McRee, Life and Correspondence of James Iredell, (N. Y., 1858), 
I. 207, 209, 214, 218, 219. 


THE COMMONWEALTH OF NATIONS 57 


pendence on the British legislature, and that it can only 
be by a formal declaration of these rights, and forming 
fhereupon a friendly league with them, that the true and 
lasting welfare of both countries can be promoted.’’46 The 
idea of the Empire as a league was not born with the 
twentieth century. Cartwright’s league took in all of the 
American states, including Quebec and the Floridas, and 
all were “held and declared to be free and independent 
states, each to be subject only to such law and government 
as now subsists, or shall hereafter be enacted by its own 
proper legislature.” The King was to be separately the 
King of each of the constituent nations of the league and 
to be “the protector of the whole against foreign powers.” 
This would not make the constituent nations separate units 
in international law, despite the declaration that they were 
“free and independent states,’ a fact which once more 
emphasizes the inadequacy of our political terminology, 
which finds it so difficult to admit the existence of an entity 
thus composed. Cartwright even admitted the right of 
each nation of the league to make treaties with the others 
“in order that a firm, brotherly and perpetual league may 
be concluded between Great Britain and them.” How- 
ever much such a proposition must have shocked the advo- 
cates of the Navigation Acts, it does not seem so impracti- 
cable in the light of later experience.** 
The other “philanthropist, pamphleteer and scholar” 
» was Granville Sharp, in whose work is to be found one 
of the earlier suggestions that the Britannic Common- 
wealth might become a prototype for a world-wide league 
of nations. In his “Declaration of the People’s Natural 
Right to Share in the Legislature,” Sharp enunciated the 
doctrine that as “the King and the people constituted the 
sovereign power in Great Britain,’ so the King and the 
people of America constitute the sovereign power in 
America. For “representation of the people in every part 
of the British Empire is absolutely necessary to constitute 


* American Independence: The Interest and Glory of Great Britain, 
(London 1774), p. 63. : 


47 Cf. Edward Smith in Dict. of Nat. Biog., IX. 224. 


58 POLITICAL IDEAS AMERICAN REVOLUTION 


an effectual legislature according to the fundamental 
principles of the British Constitution.”48 Nevertheless, 
“however distinct these several parts and provinces may 
seem in point of situation, as well as in the exercise of a 
separate legislative power for each (which constitutional 
rights they have enjoyed beyond the memory of man), 
they are nevertheless firmly united in the circle of the 
British diadem, which will never be divided, if the safe 
and honest policy be adopted of maintaining the British 
constitution inviolate in all parts of the Empire.” In pur- 
suing this idea Sharp beheld his vision of an “empire of 
the world” based upon and exemplified by a union of all 
those communities with which expanding Britain has 
peopled the world.*9 

Efforts at reconciling the colonies upon this general * 
basis of a league of equal states by no means ceased with 
the outbreak of the war. The efforts made by the gov- 
ernment in sending out the Carlisle Commission in 1778 
was accompanied by a revival of these schemes, prominent 
among which was William Pulteney’s proposal. Far from 
believing that the Declaration of Independence had made 
a union impossible, he thought it only more likely to be 
favorably considered. Events since 1775 must, he be- 
lieved, have disillusioned the Tories as to the willingness 
and capacity of the Americans to defend their principles 
with their lives, and consequently the time had come to 
compromise, or even to consent to the reorganization of 
the Empire upon the terms which the Americans laid 
down. He urged that the old theory of colonial depend- 
ency be dispensed with, and that the status of the colonists 
as equal participants in the benefits of the British Consti- 
tution be acknowledged. The work was immensely pop- 
ular and ran through five editions.°° 


4 Declaration, etc., p. 17. See also Memories of Granville Sharp, Esq., 
by Prince Hoare: (London: 1820), pp. 172, 181. 

*# Cf. A. F. Pollard in Dict. Nat. Biog., LI. 421, Cf. also G. L. Beer’s 
English Speaking Peoples, which is a recent revival of Cartwright’s idea. 

5 William Pulteney, Thoughts on the Present State of Affairs with 
America and the Means of Conciliation, (London: 1778). The author 
was a Member of Parliament from Shrewsbury, and should not be con- 
fused with the other pamphleteer of the same name, the Earl of Bath. 


THE COMMONWEALTH OF NATIONS 59 


Among the efforts to uncover a theory which would sup- 
ply the compromise between dependency and independ- 
ency, few are so penetrating as that which appeared in 
London in 1780 under the name of ‘“‘A Plan, or Articles 
of Perpetual Union, Commerce and Friendship, Between 
Great Britain and Her American Colonies.”®!' Here was 
an Englishman who urged that “From hence we should 
be taught to view the colonies, not as a few insignificant 
and petty states, but (what they soon will be) as a large, 
flourishing and powerful empire; not as children whom 
we may chastise at pleasure, but as friends, as equals, and 
as brethren.” ®? His “medium between the claims of total 
independence and those of legal subjection” was drawn 
in the form of a treaty between Great Britain and Ireland 
and America. These three with the dependencies an- 
nexed to each were considered to form an “‘empire”’ which 
was a single political unit as far as defense from external 
aggression was concerned. In all other matters, British 
America was to be a free and independent nation; indeed, 
he had no objection to calling her such. In case of war 
the troops of any part of the empire could be used for the 
defense of the whole—but should “on no account be em- 
ployed in conquests, or in foreign expeditions, without 
the formal consent and cheerful approbation of those en- 
gaged.”°3 Each American province was to have a gov- 
ernor appointed by the crown, but this governor was to 
be practically at the mercy of the popularly elected legis- 
lative body, without whose consent he could do nothing, 
and by whom his salary was paid.®+ Colonial legislatures 
could override the laws of England, whenever they saw 
fit to do so for local purposes. All this seems extremely 
liberal, so much so that one is a little suspicious. Some 


51 Subtitle: Founded in the Solid Basis of Justice and Proposed as a 
Medium between the Claims of Total Independence on the one hand and 
those of Legal Subjection on the Other. 

52.4 Plan, etc., p. 9. 

53.4 Plan, etc. p. 19. 

54 There were to be four provinces into which the colonies were grouped. 
Re 21._ (1) Nova Scotia and the New England Colonies; (2) New York, 

ew Jersey and Pennsylvania; (3) Maryland, Virginia and North Caro- 
eS (4) South Carolina to Florida. Canada was suggested as a possible 


60 POLITICAL IDEAS AMERICAN REVOLUTION 


justification of that suspicion is found in the commercial 
clauses of the proposed treaty. The preferential rates to 
be granted to British vessels and British products ensured 
the commercial supremacy of the mother country as far 
as her European competitors were concerned. The author 
fell in with things as they were as far as to recognize the 
Continental Congress and provide for its continued exist- 
ence as the “grand legislative, superintending and con- 
trolling power through all British America,” and as pos- 
sessing the sole power of taxing for imperial purposes. 
The executive of British America was to be a council of 
twelve to be elected by the people at the same time they 
chose their delegates for the legislature. This left prac- 
tically no power to the representative of the crown, the 
Lord Commissioner, who was to be appointed by the King 
and “to whom all acts which shall be passed by Congress 
shall be formally presented, not for the purpose of his as- 
sent or approbation, but merely to be transmitted to Great 
Britain as a matter of information only.”®> It was ad- 
mitted that the Lord Commissioner was in the nature of 
an ambassador rather than a governor. His position was 
similar to and quite as innocuous as that of the royal 
governors-general in the great self-governing dominions 
today. The whole plan was worked out with an appar- 
ently sincere desire to secure for the members of the em- 
pire such a “moderate dependence as may in no one in- 
stance be gallingly felt, thereby to save the expense of 
military and other establishments, and yet to secure a 
firm and lasting union” with Great Britain.®® In the face 
of the failure of the Carlisle mission and the increasingly 
manifest inability of the British to subdue the colonies, 
such a scheme was necessarily fruitless, but it is fairly 
concrete evidence that the discussions incident to the 
American Revolution brought to light men who were at- 
tacking the problem of trying to mediate between states of 
“moderate sovereignty.” 


& 4A Plan, etc. pp. 21, 46, 50. 
56 Tbid., p. 69. 


THE COMMONWEALTH OF NATIONS 61 


This chapter would be incomplete if it did not take 
notice of the latest application of the theories of Bland, 
Wilson, Jefferson, and John Adams. The treaty which 
promises to terminate the centuries of terror in Ireland 
gives Ireland just the place in the empire which the 
Americans demanded in 1774. The sole constitutional 
thread is allegiance to a common king, which apparently 
has worked in regard to the other dominions, Canada, 
New Zealand, Australia, South Africa, and the like. It 
is a far cry from James Wilson to Michael Collins, but 
Lloyd George is infinitely further from the group that 
dominated the British government in the time of George 
HES? 


57 Treaty between Great Britain and Ireland creating the Irish Free 
a pee: 6, 1921. Articles I, II, and III. Reprinted in Current History, 


ee _ os 


THEORY OF 
COLONIAL DEPENDENCY 












Tye 
WG S>- 
“s. 


aad 








oe 
wy 
ee) 


THEORY 


OF THE, COMMONWEALTH 
OF “NATIONS es 


THEORY OF 


=, 
Ss; 
<a 
iN 
eo 
) 
IMPERIAL FEDERATION 


[62] 


y ‘ THEORIES OF BRITISH AND BRITANNIC IMPERIAL 
ie ORGANIZATION 


No. 1. THE BRITISH EMPIRE, The Theory of Colonial Dependency, or 
the theory of a mother country and her children colonies. This was the 
theory current in the “Old British Empire’ (before 1784). Great Brit- 
ain and her Parliament are the head and center of the empire, and 
all the colonies are subject to her. The Channel Islands and the Isle 
of Man are not colonies, but are subject directly to the crown, This 
diagram illustrates the point of view of those who held to the theory of 
p Pee oel cater supremacy. Several colonies are omitted for the sake 

brevity and clarity, for the diagram is intended only to indicate the 
theory and not to be a sketch of the constitution of the empire in detail. 
It ought to be observed that it is questionable whether India can be con- 
sidered a part of the empire prior to 1784. Each circle represents a 
government. 


No. 2. THE BRITISH IMPERIAL CONFEDERATION, The Theory of 
Imperial Federation. This represents an idea which has never been put 
into practice. It involves the subordination of the government of Great 
Britain to the level of the other governments in the empire and the 
erection of a central imperial government, with an_ imperial parliament 
to which all the dominions send representatives. This is what would 
have happened if the American cry of no taxation without representation 
had been heeded, for this shows how the ‘“‘colonies” might have been 
represented. The diagram is constructed with the present dominions, 
as the question has seriously been debated in late years as a possible 
future model for imperial constitutional relations. It does not, however, 
seem practical. A circle represents a government. 


No. 3. THE BRITANNIC COMMONWEALTH OF NATIONS, The 
Theory of Britannic Partnership. This diagram represents what the 
empire has actually become and what the more enlightened) Americans 
were asking for in the eighteenth century. A circle represents a govern- 
ment; the Imperial Conference is not a government, but is more akin 
to an international conference. This diagram takes some liberty with 
the facts for the sake of simplifying the idea. There is no uniformity 
in the relationship of the various dominions to the commonwealth. It 
should be observed that many of the so-called crown colonies are moving 
in the direction of the dominion status as they are being granted rights 
of local self-government—e.g., Malta. 


[63] 


CHAPTER IV 


TAXATION AND REPRESENTATION: 
SOME RECONSIDERATIONS 


The story of the taxation controversy forms an essen- 
tial part of the American historical background for an 
association or league of nations. Yet, were one to sit 
down and read any one of the better known secondary 
accounts of that controversy, it is somewhat questionable 
whether he-would associate it with modern problems in 
international law. Nevertheless, the more we try to 
understand the relationship which the United States must 
bear to whatever form of world organization eventuates 
from international conferences and practices, the more 
there seems to run through the ten years preceding the 
Revolution a tale that needs to be told. And it is a tale 
that is worth recounting if one has no other motive than 
historical curiosity. At the outset we should eliminate 
from our thought any antipathy or partiality toward Great 
Britain, insofar as the phrase “no taxation without repre- 
sentation” rouses either the one or the other in us. It 
would seem almost commonplace to suggest that that slo- 


gan should be viewed as a symptom of defective imperial 


machinery, but it is a commonplace not always observed. 
There is reason to say that the familiar “no-taxation- 
without-representation” battle-cry was but the final stage 
of a ten-year struggle to make the British Parliament 
understand that its chief task was to formulate a satis- 
factory league of nations.!_ It was bound to be noticed 


1In the year of the Stamp Act, Gov. Bernard of Massachusetts asserted 
that the political reorganization of the American governments was a con- 
dition precedent to settling the dispute between England and her colonies. 
Nine years later, on the eve of the Revolution, he published some letters 
which he had written many years before when still governor, in which 
publication he remarked, in the preface, what an unfortunate blunder it 
was that at the time of the English Revolution of 1688 ‘‘the constitutions 
of the governments of America were not settled in Parliament and the 
rights of the Imperial state over them acknowledged, with such regulations 
and limitations as the several natures of them, upon constitutional prin- 


[ 64 ] 


TAXATION AND REPRESENTATION 65 


by the statesmen of a little more than ordinary vision that 
“the degree of authority which might rightfully be exer- 
cised by the mother country over her colonies has never 
been accurately defined.” 2 

What the people of the Revolutionary period thought 
and proposed about an improvement of the superintend- 
ing machinery of the empire in the period when the ne- 
cessity of such improvement came most critically before 
that part of the British Empire which became the United 
States of America is a story which one must look far to 
discover. Among the host of valuable commentaries on 
the American Revolution, there are several which lead us 
up to the very edge of the subject and then, digressing 
into some other field, leave the reader with a most unsatis- 
fied feeling. Yet during that ten years between the pas- 
sage of the Stamp Act and the outbreak of the war for 
independence, the statesmen of the thirteen overseas self- 
governing dominions of the British Empire in North 
America participated actively in an effort to solve the 
problem of the commonwealth of nations. By the Ameri- 
can Revolution they evaded, for the time being, any fur- 
ther responsibility in the matter, as far as that particular 
commonwealth is concerned. Hence it is in the decade 
before that evasion of responsibility that one may hope to 
discern the roots of the movement to organize a league or 
commonwealth of semi-sovereign states. 

One feels instantly challenged for not beginning his 
search earlier, for the Articles of Confederation of the 
United States of New England bear the date of 1643.8 
It is indeed true that the so-called “Plans of Union” be- 


ciples and good policy should require.’”’ If only this had been done, then 
at the late date of 1774 Great Britain would not “be at a loss for the 
principles upon which the connection of its subordinate governments with 
the Imperial state may be best preserved and the union of the whole 
maintained and continued.”’ The Barrington-Bernard Correspondence: 1760- 
1770, p. 93. Select Letters on the Government of America and the ‘Prin- 
ciples of Law and Polity Applied to the American Colonies. (London: 
1774), p. ii. 

4jJohn Marshall, A History of the Colonies Planted by England on the 
Continent of North America, From Their Settlement to the Commencement 
7) the War Which Terminated in their Independence, (Philadelphia: 1824), 
Pp. . ‘ 

2See Plymouth Colony Records, IX. 3. 


66 POLITICAL IDEAS AMERICAN REVOLUTION 


gan to appear at the end of the seventeenth century. But 
it is submitted that these efforts to formulate a union of 
the provinces of America are better conceived as a part 
of the American historical background of the idea of a 
federal union, and they can be employed to little advantage 
for the purposes of this study. The New England Con- 
federation of the seventeenth century forms a better proto- 
type for the Dominion of Canada, or the Commonwealth 
of Australia, than it does for any commonwealth or league 
of nations. Historians have not neglected the story of 
these “Plans of Union” in the story of the United States 
as a federal union. Yet the other and larger question does 
not reach a critical point while there is as yet no Grenville 
to bother himself with colonial dispatches.4 The plans 
of union were dictated to a very large extent by the mo- 
tive of defense, either against the Indians or the French, 
while the other idea could not appear until there was some 
motive for asserting the status of the members of the 
empire-commonwealth. It was but natural that the earlier 
plans should present themselves as adaptable to the situa- 
tion which called them forth, and that was not so much 
international codperation as common defense. Hence 
when the early plans do take into consideration the rela- 
tionship between the component parts of the empire, they 
are apt to emphasize the subordinate position of the pro- 


4Dr. A. C. McLaughlin has for many years been trying to impress his 
students and readers with the significance of the problem of imperial order 
in the preliminaries of the American Revolution. His chapter on the 
“Background of American Federalism’ (America and Britain: 177-221: N. 
Y.: 1918) is an able interpretation of the decade before the Revolution 
as an unsuccessful attempt to solve the British Imperial Problem. Failing 
to find this solution, the decade becomes to him the “‘Background of Amer- 
ican Federalism.” Dr. H. C. Hockett has attacked the same problem 
and finds this story, “The American Background of Federalism” (vid. 
Amer. Hist. Rev., XXVI, 427). He believes that the chief contributions to 
political thought were to the problem of Federalism wherever found, and 
particularly he believes that the American position in the pre-Revolutionary 
controversy fore-shadowed the modern British Imperial Organization. If I 
have interpreted these gentlemen correctly, it is my own belief that this 
story'serves yet another purpose, and I believe I am justified in retelling 
it from the point of view of the ‘American Contribution to Sovereignty.” 
Dr. Hockett has advanced the view that it was not the American Revo- 
lution which forced the British to abandon their oJd narrow colonial 
system, but the ideas of Adam Smith and Canadian demands for respon- 
sible government. If this be true, and it is my opinion that it is true, 
then the political thought of the American Revolution becomes a contrib- 
ution to the philosophy of International Law, i. e., it forms a _back- 
ground for a league or association or nations. 


TAXATION AND REPRESENTATION 67 


posed colonial union, as in Franklin’s Albany Plan® 
(1754), where provision was made for the disallowance 
by the King in Council of the acts of the Grand Colonial 
‘Council. Such a plan as that prepared by the Lords of 
Trade in 1754 was one of “general codperation of the 
American colonies,” and is chiefly actuated by a desire to 
make the colonies undertake their own defense in case of 
war. The other plans providing for “general codpera- 
tion between the component parts of the empire-common- 
wealth” begin to appear after the close of the Seven Years 
War, when other elements and motives enter the situation. 
The close of that war (1763) ends an epoch in Ameri- 
can history, for the motive of defense against the French 
has, to a large measure, vanished. Hence it is that in the 
plans of colonial cooperation which now appear there en- 
ters the element of imperial cooperation. For example, 
Galloway’s plan, which has been classed among the plans 
of union, makes an advance over the earlier programs for 
a purely colonial union in that the colonies desire such 
union “not only among themselves, but with the mother 
state.”* The taxation controversy, which arose after the ' 
end of the old epoch had fixed the minds of the colonists 
upon the defective imperial machinery of the Britannic 
Empire Commonwealth, and the ten years of taxation 
wranglings between 1765 and 1775 have yielded many 
stories for the chronicler. Yet among these stories one 
does not find frequent reference to direct efforts to solve 
the difficulty as one of quasi-international organization. 
The reason is not far to seek. The century which insisted | 


upon telling the story of the Revolution in terms of red-\~ 


coats and Hessians was no sooner in its grave than an- 
other century opened with an explanation of the American 
Revolution in terms of the struggle for commercial 
supremacy. “The primary cause of the American Revo- 
lution must be sought in the character of the old colonial 


® Franklin, Works: (Sparks Ed.), III. 36. 
®° Documents Relating to the History of New York, VI. 903. 


7A. B. Hart and E, Channing in Amer. Hist. Leaflets No. 14, so class 
auoraye Plan. For that plan see Peter Force, Amer. Arch., 4th Series, 
ol I. h : 


\\ 


68 POLITICAL IDEAS AMERICAN REVOLUTION 


system,” those acts of trade and navigation, “which were 
based on political and economic theories generally accepted 
as valid in the seventeenth century, but which are, never- 
theless, the fruit of ignorance and inexperience.”® “Com- 
mercialism, the desire for advantage and profit in trade 
and industry, was at the bottom of the struggle of Eng- 
land and America; the immutable principles of human 


\\ association were brought forward to justify colonial re- 


‘ sistance to British selfishness.”® There is no need to dis- 


cuss the accuracy of these conclusions; they represent de- 
ductions based upon careful scientific investigation. But 
attention may profitably be directed to them in partial ex- 
planation of the insufficiency of our knowledge of the 
efforts made prior to the Revolution to settle the dispute 
between Britain and her colonies by the method of reform- 
ing the empire commonwealth. A recent writer has ob- 
served with a good deal of cogency that “the issue between 
England and America is therefore not to be resolved by 
commuting the burdens of the penny tax, or exposing the 
sordid motives of British merchants and Boston smug- 
glers, still less by coming armed at all points with law cases 
and acts of Parliament, with a statute book doubled down 
in dog’s ears, to defend the cause either of liberty or of au- 
thority.”1° Such warning has not prevented writers from 
approaching the subject of the American Revolution as a 
“problem of separation,”!! but it does inspire one with a 
desire to see what reason there is to view the Revolution 
as an unsolved “problem of devolution.” 


The remark that the controversy over taxation fixed” 


the thoughts of Americans on the nature of the imperial 
machinery and its defects may not pass unchallenged. 
Nevertheless, there is reason to say that this dispute had 
that deeper political significance not ordinarily attributed 
to it. Although one spectator historian of the Revolution 
called the taxation controversy the “very hinge upon 


8G. E. Howard, Preliminaries of the American Revolution, p. 47. 
®E. Channing, History of the United States, III. i. 
10C. Becker, Beginnings of the American People, p. 203. 


uW. E. Foster, “Stephen Hopkins, Statesman,” supplies this apt ex- 
pression which epitomizes the point of view of numerous writers. 


4 











TAXATION AND REPRESENTATION 69 


which the Revolution turned,”’!? still historians, earlier 
and later, have conceded that “the Stamp Act and the in- 
-significant duty on tea, precipitated, but did not alone pro- 
duce the American Revolution,’ +? that “taxation was the 
excuse rather than the cause of the Revolution.’’}4 
Hence we approach the subject as a symptom rather thane 
as a disease itself. me 
For purposes of clarity and convenience, the story of the 
constitutional aspect of the taxation controversy may be 
understood to develop in three successive stages. In the 
first the colonies admitted the right of Parliament to levy 
customs duties (external taxes), but denied the right of 
Parliament to levy excise taxes (internal taxes) upon 
them. In the second, the colonies conceded the right of 
Parliament to regulate the trade of the Empire, and hence 
exercise a legislative authority over the unrepresented 
colonies, but denied the right of Parliament to levy taxes 
of any kind whatever, internal or external. In the third 
stage of the controversy, the colonies admitted the right 
of Parliament to act as a quasi-imperial superintending 
power over them and over all the dominions, but denied 
that Parliament had any legislative authority over the col- 
nies as a general proposition, on the ground that the col- 
onies were not represented in Parliament. Such a story 
illustrates how, throughout the controversy, the colonists 
were attempting to work out philosophically and _ politi- 
cally some formula by which they could become free na- 
tions and yet at the same time continue their participation 
in the Britannic league of nations. To say that they were 
attempting an impossible task is simply to blind oneself to 
the history of the British Empire since the middle of the 
nineteenth century. To say that they were essaying the 
task at all entails the responsibility of demonstration.!® 


2D. Ramsay, History of the American Revolution. (Phila.: 1789), I. 48. 
48 T. Pitkin, Political and Civil History of the United States, (1828), I, 4. 
14M. Farrand, Development of the United States, (1918), p. 38. 

+ The testimony of Thomas Hutchinson who, previous to being Governor 
of Massachusetts, had been a citizen of that province, is significant: “The 
colonies, in general, during these disputes, had acquired a new _ set of 
ideas of the relation they stood in to the Parliament of Great Britain.” 
“From admitting a principle of partial dependency, gradual advances were 


70 POLITICAL IDEAS AMERICAN REVOLUTION 


A literary history of the Stamp Act year would throw 
in high relief Daniel Dulany’s “Considerations on the 
Propriety of Imposing Taxes on the British Colonies.”16 
Representative of the stage which American thought had 
reached on the constitutional aspect of the taxation dis- 
pute, the work is doubly interesting as having had such 
influence in shaping Chatham’s opinions.4* “By their 
constitutions of government, the colonies are empowered 
to impose internal taxes,’’ reasoned Dulany, yet “this 
power is compatible with their dependence, and hath been 
expressly recognized by the British Ministers.”18 Fas- 
tening upon the expression “internal taxes,” Chatham 
made the most of it in his celebrated speech in January, 
1766, when he drew a distinction between what Parlia- 
ment could and could not do in asserting its jurisdiction 
over the colonies. Somewhat scornfully he replied to 
Grenville, “if the gentleman does not understand the dif- 
ference between internal and external taxes, I cannot help 
it,’1® and laid down the proposition that Parliament could 
not impose the former but was permitted to impose the 
latter. The former as a trade regulation was permissible; 
the latter, as taking money from the pockets of the people 
without their consent, was utterly without warrant. 
Around this distinction is built the first phase of the con- 
stitutional argument. A line was drawn which was sup- 
posed to explain the nature of the imperial machine. The 
rights of local self government, including that of internal 
self-taxation, were asserted “without striking at, or im- 
peaching in any respect, the superintendence of the Brit- 


made until total independency was gestae History of the Province of 
Mass. Bay: (London: 1838), III, 164, 5 

16 Considerations on the Propriety of Imposing Taxes on the British 
Colonies for the Purposa of Raising Revenue by an Act of Parliament: 
[Daniel Dulany]. (Annapolis: 1765) 

17M. C. Tyler, Literary Hist. of “ Amer. Revolution, I. 111 q. v. for 
illustration, with parallel quotations from Chatham and Dul any. 

18 Dulany, Considerations, etc., p. 15. 

oa hay jefe tHexe) Sea: pee distinction between taxes levied for the pore 
of raising revenue, and duties imposed for the regulation of trade, for the 
echo upaericn of the subject, although in consequence of the latter, some 

revenue might arise from the latter.’”” Hansard, Parliamentary History, 
XVI. (1765-71), 100. 


TAXATION AND REPRESENTATION 71 


ish Parliament.”2° In consequence of the exercise of 

that “superintendence,” revenue might be produced, and 

certainly the trade and manufacture of the colonies would 
‘be curtailed. : 

The Chatham-Dulany line of argument assumed the 
supremacy of Parliament over the colonies, while admit- 
ting them to be in the single case of internal administra- 
tion, including taxation, free from Parliamentary inter- 
ference.2!_ It was a question of divided sovereignty, so 
familiar in federal unions. In the thought of these two, 
Westminster occupied the position of what, on first glance, 
appears to be a federal parliament in addition to its ca- 
pacity as a local legislature for Great Britain. In conse- 
quence, might it not be fair to say that such a legislature 
had the right to impose federal trade regulations, and if, in 
consequence, some income was unintentionally produced, 
the treasury of the federation, if such it was, would be 
entitled thereto? The weakness of this position was 
observed by at least one spectator-historian, who com- 
mented with pertinence: “Mr. Pitt’s declaration against 
Parliament’s right to impose internal taxes, and his say- 
ing ‘I am glad America has resisted’, were seized upon 
by the popular leaders in the colonies. They praised and 
idolized him for the same, without regarding what he had 
declared in favor of the authority of Parliament in all 
cases of external taxation, and for the enforcing of all 
laws for that purpose; and notwithstanding his having 
said ‘If obedience be refused, I would not suffer a horse 
nail to be made in the plantations’.”’22. In this same group 
belongs Edmund Burke, much lauded as the friend of the 
colonies. Although his famous utterances came in 1774 
and 1775, a decade after this controversy, yet he had, in 
fact, not progressed at all beyond the conception here out- 

2» Dulany, Considerations, etc., p. 15. 


21 Hansard, Parl. Hist., XVI. 101; Dulany, Considerations, etc., p. 16. 


2wW. Gordon, History of the Rise, Progress, and Establishment of the 
Independence of the United States of America, (London: 1788), I. 206. 
An interesting illustration of the lack of contemporary attentiveness to 
what Chatham had really said may be found not only on the statues of 
him erected in America, but in the numerous medals struck off to William 
Pitt, Defender of Liberty.”” See C. W. Betts, American Colonial History 
Illustrated by Contemporary Medals, (1894), pp. 229-32. 


72 POLITICAL IDEAS AMERICAN REVOLUTION 


lined. To him, likewise, the Parliament of Great Britain 
sat as an imperial federal parliament, superior to the 
colonial legislatures in every way, retaining all the right of 
imposing taxes for imperial purposes. Indeed, it seems 
reasonable to say that Burke, far from representing an 
advance on Chatham, made a distinct step backward, for 
he would permit a reserve power in Parliament to coerce 
the subordinate legislatures even to the extent of imposing 
taxes upon them for imperial purposes. This position of 
Burke should be held in mind when examining the theories 
and doctrines presented by the more profound colonial 
thinkers, and also when studying the ultimate solution as 
worked out by the great self-governing dominions of the 
empire in the nineteenth century.?* 

Chatham’s appeal to the House of Commons to repeal 
the Stamp Act was followed in the next month by an event 
which should illuminate the constitutional aspect of the 
controversy. In attempting to portray the thought of a 
past age, a controversial document with give-and-take 
argument is often worth a dozen dogmatic utterances, for 
in such a document, in self defense, one must make his 
idea plain, if he have any clear idea at all. Ten years 
earlier Benjamin Franklin had commented on the weak 
noodles of his fellow colonials who would take no definite 
action on the problem of colonial union.24 In his “Exam- 
ination Before the House of Commons” we might fairly 


*8 A year before his Speech on Conciliation, Burke had clearly given ex- 
pression to his opinion of the nature of the British Empire, in language 
worth giving in full: “The Parliament of Great Britain sits at the head 
of her extensive eapire in two 1 cesar one as the local legislature of 
this island... . the other. ... is what I call her imperial character, in 
which she superintends all the several inferior legislatures, and controls 
them all without annihilating any. As all these provincial legislatures are 
only co-ordinate to each other they ought all be subordinate to her; else 
they can neither preserve mutual peace nor hope for mutual justice, nor 
effectually afford mutual assistance. It is necessary to coerce the negligent 
and restrain the violent, to_aid the weak and deficient, by the overruling 
plenitude of her power. But in order to enable parliament to answer 
all these ends of provident and beneficent superintendence . . . . the power 
must be boundless. The gentlemen who think the power of parliament 
limited may talk of requisitions, but suppose the requisition is not obeyed? 

Z I consider the power of taxing in Parliament as an instrument of 
empire, not as a means of supply. Such is my idea of the constitu- 
tion of the British Empire as distinct from the constitution of Great 
sana Hansard, Parl. Hist., (1771-74), XVIII. 1266-7. Speech of April 

; : 


24 Franklin’s Works, (Bigelow Ed.), III. 410 ff. 


TAXATION AND REPRESENTATION 73 


expect that he would throw some light on the nature of 
that British Empire in which he was wont to glory. He, 
too, employed the distinction between “internal” and 
“external” taxation, and when pressed for an elucidation 
of the distinction he dodged by turning his answer into 
that clever warning not to press the colonials too far, over 
which historians have been chuckling ever since. This 
quotation is one of those which assumes a different aspect 
on being put back in its context. Considerably earlier in 
the course of the “Examination,” Franklin had come out 
flatly with the statement that the colonies would not object 
to an “external tax,” a duty laid upon commodities im- 
ported, and thus passed on to the consumer by being added 
to the price of the goods. The “internal tax,” as forcing 
money from the people without their consent, was what 
the colonials objected to.2° “But the payment of duties 
laid by an act of Parliament, as regulations of commerce, 
was never disputed.”2® Upon this the questioner pressed 
on and inquired what would happen if Parliament were 
to lay such an external tax as would not leave the colonist 
the alternative of simply not buying the taxed goods, as, 
for example, if Parliament should lay a tax upon some 
necessity being imported into America. At this point, if 
Franklin had any clear idea, we might expect he would 
have given it. But he evaded the issue by saying that 
Parliament would be unable to do such a thing because 
there was no “single article imported into the northern 
colonies but what they can either do without or make 
themselves.” 27 This diverted the questioner and relieved 
Franklin for the time being from the necessity of vindi- 
cating his impossible distinction. But such an answer 
could only leave the Commons under the impression that 
if they were to levy a customs duty and incidentally raise 
money, the colonists would have no constitutional ob- 
jection.?§ 


2% Franklin’s Works, (Bigelow Ed.), III. 422. 

26 Tbid., III. 419-20. 

7 Tbid., III. 423. 

78 Dulany had made his distinction between “an act imposing a tax for 
the single purpose of raising revenue, and those acts which have been 


made for the regulation of trade, and: have produced some revenue in 
consequence of their operation as regulations of trade.” p. 46. 


74 POLITICAL IDEAS AMERICAN REVOLUTION 


One would like to know who it was that pressed Frank- 
lin for information on this point.2® It is extremely likely 
' that Townshend was present if he did not actually ask the 
questions. Since his chief offense is that he took the 
_ Americans at their word, and levied “external taxes,” it 
'is a matter of some importance that Dulany and Franklin 
aided him to misinterpret the American opinions. Further 
efforts on the part of the inquisitors enabled Franklin to 
turn the laugh of history on his opponents by the shrewd 
forecast that the colonials would soon object to any tax- 
ation.2° In its context the final clever evasion puts the 
Doctor in a little different light and classes him with 
Chatham, Dulany, and Burke, of all of whom it is probably 
proper to say, they did not object to the Stamp Act on the 
ground that Parliament had no general right to legislate 
for the colonies.2!_ They all admitted a general right in 
Parliament to legislate for the unrepresented colonies.?2 


29 Walsh’s Life of Franklin in Delaplaine’s Repository of the Lives and 
Portraits of Distinguished Americans, (Phila. 1815), II. 74, notes “We 
have in our hands a document for which we are indébted to the Hon. 
Joseph Hopkinson, that discloses a part of the private history of this 
memorable transaction. It is a series of notes sent by Dr. Franklin to 
a friend who desired to know by whom the several questions were put.” 
This document attributes the questions on internal and external taxation 
to members of Grenville’s ministry, and particularly to Mr. Townshend. 
Another source, given in Bigelow, Life of Franklin, I. 510, attributes some 
of them to Lord North. 


% Franklin’s Works, (Bigelow Ed.), III. 447. 


81 See Chatham in Hansard, XVI. 100-1; Burke, supra; see Franklin’s 
remark: ‘‘The authority of Parliament [to make faws for America] was 
allowed to be valid in all laws except such as should lay internal taxes.” 
Works, (Bigelow Ed.), III. 417. See Dulany: “The subordination of the 
colonies and the authority of parliament to preserve it have been fully 
acknowledged. Not only the welfare but probably the existence of the 
mother country as an independent kingdom may depend upon their trade 
and navigation.” ‘From these considerations, the rights of the British 
Parliament to regulate the trade of the colonies may be justly deduced, 
. .. . it is a common and frequently most proper method of regulating trade 
by duties on imports and exports.’’ Considerannee etc., p. 46-7. And 
further the same author says “On the other hand the colonies acknowledge 
themselves subordinate to the mother coumtry, and that authority vested 
in the supreme council of the nation, may be justly exercised to preserve 
that subordination.” p. 37. And also “May not, then, a line be drawn 
between such acts as are necessary and proper for securing the dependence 
of the colonies, and such as are not necessary or proper for that pur- 
pose?” p. 17. 

%Jn 1768 Franklin wrote to his son, ‘“‘As to the farmers combating, as 
you say they intend to do, my opinion that parliament might lay duties, 
though not impose internal taxes, I shall not give myself the trouble to 
defend it,’’ for since every nation had the right to impose an export tax 
and thus, by increasing the selling price, tax the ultimate consumer, he 


TAXATION AND REPRESENTATION 75 


The final break found the two colonials, Dulany and 
Franklin, on different sides. Chatham and Burke strug- 
gled on for a restoration of good relations, but, in the light 
‘of the ultimate evolution of the imperial structure, they 
were on the wrong track in the position they had taken. 
The time had come for the surrender, not the assertion 
of the Parliamentary supremacy of Westminster. 

For, although the American advocates at Westminster 
might draw fine distinctions in their behalf, the colonials 
soon realized that they must retreat from any such posi- 
tion as that entailed by a distinction between internal and 
external taxation. Charles Townshend had taken the 
Americans at the word of their defenders. According to 
the report of one of the colonial agents at London, “the 
Chancellor of the Exchequer [Townshend] declared in 
one of these meetings [of the colonial agents] that al- 
though he had not the least doubt of the right of Parlia- 
ment to tax the colonies internally, and he knew no differ- 
ence between internal and external taxation (which, by the 
way, is a doctrine very generally adopted here), yet since 
the Americans were pleased to make such a distinction, he 
was willing to indulge them, and chose for that reason to 
confine himself to the regulation of trade by which a suf- 
ficient revenue might be raised in America.”’?3 The result 
was the ‘““Townshend Acts” in which the external, or cus- 
toms duties were laid on tea and certain other articles. 
Naturally enough, then, the Tory spectator-historian re- 
marks, “the new ministry, laying hold of this distinction, 
and availing themselves of a supposed concession, pro- 
cured an act of Parliament to be passed for imposing cer- 
tain duties on glass, paper, tea, etc.’24 Another, a more 


still considered the distinction legitimate. England, for instance, exported 
coal to Holland and charged such an export tax that the Dutch paid the 
tax, yet England would have no right to levy an internal tax in Holland. 
Works (Biglow Ed.), VI. 131. Very properly then does the Tory chron- 
icler, Lord Mahon, record ‘“‘most strongly did he [eras urge the dis- 
tinction between internal and external taxation, the former, he said the 
colonists would always resist, the latter they had never questioned.” Hist. 
of England: 1713-1783, ch. xlv. 

33,W. Johnson, colonial agent for the province of Connecticut, to Gov. 
W. Pitkin, May 16, 1767, in Mass. Hist. Soc. Coll., Ser. 5, IX. 228. 

*C. Stedman, History of the Rise, Progress and Termination of the} 
American War. London (1794), I. 53. The author was on Sir Henry 
Clinton’s staff. ; 


76 POLITICAL IDEAS AMERICAN REVOLUTION 


sympathetic observer, reviewing the controversy twenty 
years later, remarked, “Before the Stamp Act the colonies 
admitted a distinction between internal and external tax- 
ation, between raising money for the regulation of trade 
and raising money for the purpose of revenue,” but since 
Parliament did take them at their word and the colonists 
were “obliged to enter afresh the field of political contro- 
versy, great numbers began to think that there was no 
real, but only a nominal, difference between internal and 
external taxation, agreeable to what was insisted upon 
by the party opposing the repeal of the Stamp Act.’’35 

So after all the arch conservatives, Mansfield?® and 
Grenville, had probably been right in their contention that 
the “constitution knows no difference between impost 
duties and internal taxation.”°*7 At this point colonial 
writers began to draw a new distinction. To this second 
stage of the controversy belongs John Dickinson. Seeing 
clearly that the earlier distinction had played too easily 
into the hands of the Grenville group, and that the tri- 


% W. Gordon, History of the Rise, Progress and Establishment of the 
Independence of the United States of America, London (1788), I. 220. That 
his analysis was correct, see Stephen Hopkins, Rights of the Colonies Ex- 
amined, (Providence: 1765.) (Reprinted in Rhode Island Records, VI. 416, 
422). ‘A sound comment was made to the effect that “the distinctions which 
have been made on this subject are not well grounded; that parliament 
has a right to impose external, not internal duties. . . . these sentiments 
have been delivered and received as maxims; but the difference between 
the right of imposing external and internal duties is merely imaginary, 
grounded on no principle of justice or policy, contradictory to the claims 
of the Americans, whose resolutions assert the exemption from all duties 
not imposed by themselves; and is treated as an idle distinction by Mr. 
Otis, the chosen champion of American privelege.” From The Conduct of 
the Late Administration Examined, London (1767), p. 7. Otis had in 
fact done so. Vid. Vindication of the British Colonies, etc., pp. 29 ff. 
A Tory finally summed the whole matter up thus, “Much has been said 
about internal and external taxation, I know but little difference between 
them.” Isaac Hunt, The Political Family, Me ca p. ii. See also Lord 
Lyttleton in Hansard, Parliamentary History, XVI. 167. 

*5°“T know no difference between laying internal and external taxes.” 
Hansard, Parliamentary History, XVI. 176. 


7 Quoted from Regulations Lately made Concerning the Colonies and 
Taxes imposed on them Considered, London (1765), usually ascribed to 
Grenville, largely because ee Sparks wrote that on his copy now in 
the Harvard Library. (Vid. C. Tyler, Literary History of the Ameri- 
can Revolution, II. 472) If this constitutes historical evidence it should 
equally be noticed that what is probably President Joseph Reed’s copy 
(now in the Historical Society of Pennsylvania): has written across the 
title page ‘“‘Published previous to the Stamp Act and supposed to have 
been written by Charles Jenkinson.’”’ Jenkinson was later (1796) Earl of 
Viverpool. 


f 


Y 


TAXATION AND REPRESENTATION 77 


umphant Tories now argued that although the duties im- 
posed by the Stamp Act might be internal taxes, yet the 
new taxes under the Townshend acts were external taxes, 
Dickinson rejoined, “To this I answer with a total denial 
of the power of Parliament to lay upon these colonies any 
‘tax’ whatever.’”’°* With this statement we must couple 
his equally firm conviction: “Parliament unquestionably 
possesses a legal authority to regulate the trade of Great 
Britain and all her colonies. . . . he who considers 
these provinces as states distinct from the British Empire 
has very slender notions of justice or of their interests.”’%9 
The new distinction between the right of Parliament to 
regulate trade and the right of Parliament to levy any tax 
at all necessarily involved the question: Suppose the trade 
regulation should produce revenue? Dulany had fore- 
seen this when he commented, “the authority of the mother 
country to regulate trade being unquestionable, what reg- 
ulations are the most proper are to be, of course, submit- 
mitted to the determination of Parliament, and if an inci- 
dental revenue should be produced by such regulation, 
these are not therefore unwarrantable.’’4° The question 
then was: when does “incidental revenue’ assume the 
character of a tax? Obviously, replied Dickinson, the 
intent governs; “the nature of any imposition laid by 
Parliament on these colonies, must determine the design 
in laying them.’’*1 “Impositions” for maintaining the 
integrity of the British Empire were entirely permissible, 
but “taxes” were under no consideration allowable.42 
Why this highly attenuated distinction between “taxes” 
and “impositions”? Because the “prosperity of these 


*8 Letters from a Farmer in Pennsylvania to the Inhabitants of the Brit- 
ish Colonies in North America, (Philadelphia 1768), p. 18. See also Ford’s 
edition of John Dickinson’s Writings, in the Memoirs of the Historical 
Society of Pennsylvania, XVI. 277. 

39 Farmers Letters, p. 7. 

# Dulany, “‘Considerations etc.” p. 34. 


“ John Dickinson, Letters from a Farmer in Pennsylvania, Philadelphia, 
(1768), p. 32. 


“The nature of any impositions she may lay upon us, may, in general, 
be known by considering how far they relate to preserving in due order, 
Ene, Pemmeckon between the several parts of the British Empire.’ Ibid., 
p. 


78 POLITICAL IDEAS AMERICAN REVOLUTION 


colonies is founded on their dependence on Great Britain,” 
and some philosophical formula had to be worked out for 
securing freedom from Parliamentary interference, yet — 
insuring the maintenance of the empire and America’s | 
participation in it.48 Hence Dickinson admitted the right/ 
of Parliament to legislate for the unrepresented colonies, 
acknowledged that Parliament in England could forbid 
the erection of a steel mill in America,** called Chatham 
“our great advocate,” and yet would not allow Parliament 
the single function of taxing the colonies.4® To him 
_Franklin’s distinction, based on the legality of disguising a 
tax as a trade regulation, did not help solve the real prob- 
lem, for that was a policy suitable only for “arbitrary and 
oppressive governments.’’46 
Dickinson’s new distinction was reflected elsewhere 

when the colonies began to appreciate that Dulany, Chat- 
ham, and Franklin had led them astray. They began to 
understand at the same time that the character of a legis- 
lative act should be determined by the intent.47 How- 
ever, the necessary requirements of the political organiza- 
tion of the British Empire demanded, if it was to con- 


43“Every ‘tax’ being an imposition, though every ‘imposition’ is not 
atax.... external impositions for the regulation of trade . . . only prevent 
the colonies from acquiring property in things not necessary in a manner 
judged to be injurious to the welfare of the whole empire.” Ibid., p. 21. 

44 Tbid., 22n, citing 23 Geo. II, chap. 29, Sec. 9. 

® Tbid., p. 12. 

#6... this policy did not escape the cruel and rapacious Nero,” 
Ibid., p. 36. 

47In January, 1768, Massachusetts Bay protested to Shelburne, ‘Your 
Lordship can judge whether any necessity can render it just and equitable 
that the supreme legislative of the empire should impose duties, subsidies, 
talliadges, taxes, wternal or external, for the sole purpose of raising revenue 
on subjects that are not and cannot be represented.”” From Petitions of 
the ‘Assembly of Massachusetts Bay to the King, with Several Otheri 
Papers, Boston (1768), p. 15. Similarly, when the Ministry demanded of 
Massachusetts that she rescind the circular letter in 1768, the General 
Court informed Lord Hillsborough that “‘the people of this province have 
attended with deep concern to the several acts of the British Parliament 
which impose duties and taxes, not for the purpose of regulating trade, 
but solely for the purpose of raising revenue.”” From The American 
Gazette: Being a Collection of Authentical Addresses, Memorials etc.\, 
on the Disputes Between Great Britain and Her Colonies,” (London: 1768), 
2nd edition, p. 9, No. I. See also “Instructions to the Representatives of 
the City and County of Philadelphia, Signed by Freemen,” July 30, 1768. 
“We observe that duties laid for the sole and express purpose of raising 
revenue have been lately imposed on several articles imported into these 
colonies” in American Gazette, No. II. 90. 


TAXATION AND REPRESENTATION 79 


tinue to exist, that somewhere there exist a superior super- 
intending agency empowered to order the mutual relations 
of the component parts of the empire. ‘Political neces- 
sity,” concluded Gouverneur Morris, “therefore requires 
that this power be placed in one part of the empire,” which 
should normally be that part which protects trade. “In- 
ternal taxation to be left to ourselves. The right to regu- 
late trade to be vested in Great Britain, where alone is 
found the power of protecting it. I trust you to agree 
with me that this is the only possible mode of union. Not 
that Great Britain should lay imposts upon us for the sup- 
port of the government, for its defense, nor should she 
regulate our internal police. These things effect us only. 
To these things we ourselves are competent. But can it 
be said that we are competent to regulate trade?” Such 
a suggestion is regarded as absurd, for what indeed would 
be the result if Ireland, the colonies, and Great Britain 
were all to regulate the trade of the empire? In fact, 
some who subsequently supported the Continental Con- 
gress clung to this distinction and acknowledged the super- 
intending authority of Great Britain down to the break 
ait 1775.48 

But this new distinction was no sooner under way than 
it was attacked on both sides of the water. The pertinent 
question was asked whether, if Parliament imposed a trade 
regulation which was positively not intended to raise reve- 
nue but which did in fact produce revenue, that trade reg- 
ulation thereby became unconstitutional and void??? It 
was natural that most of the critics should concern them- 
selves more with picking technical flaws in the arguments 
than essaying the constructive task of working out a sys- 


: woo to Penn, 20 May, 1774. Force, Amer. Archives, 4th Series, 


# “Tt is the purpose of parliament in laying the tax which it seems gives 
the right of laying it. Curious reasoning this! Now, should it happen that 
Parliament was at any time mistaken in its purpose, and that a tax which 
is imposed with the intention that nobody should pay it, i. e., that it 
should operatd as a prohibition, should really turn out to be such a tax 
as the commodity on which it was charged could bear, and the people of 
the colonies were willing to purchase it at the price to which the tax had 
Taised it, what should we do then? On the other hand, suppose Parliament 
should be mistaken in a tax laid for revenue, and it turned out to be a 
prohibition would the tax then become a constitutional one?” From; The 


80 POLITICAL IDEAS AMERICAN REVOLUTION 


tem which would solve the problem of empire-building, 
upon which subject there was, of course, relatively little 
clear thinking. Franklin very properly remarked that no 
plan for imperial reorganization was likely to be successful 
“while the nature of our present relationship is so, little 
understood on both sides of the water, and the sentiments 
concerning it are so widely different.”°° Nevertheless, 
up to the time the break came, the pro-colonial writers 
were struggling with this distinction between taxation and 
trade regulation. The denial of the suggestion that the 
enactments of Parliament were in fact trade regulations, 
with the insistence that the colonies would submit to trade 
regulations, is a fact that ought never to be lost sight of 
in British imperial history, for it manifests the essential 
loyalty of the colonies to the idea of the empire, however 
antagonistic their economic interests to the policies of a 
particular ministry.5! The distinction made by Dickinson 
was equally assailable by the partisans of Great Britain 
on the ground that it was ‘“‘only a pretense under which to 
strip Parliament of all jurisdiction over the colonies.’’>2 
Perhaps it might be so regarded, but the main point which 
so many seem to have missed is just that salient fact, that 
a clear-headed American was trying to think in terms of. 
_a political union based on liberty and mutual confidence. 
For Dickinson believed that ‘The happiness and pros- 
perity both of the colonies and Great Britain depended 
upon an intimate union and connection,’’°? and his subse- 


Controversy between Great ‘Britain and her Colonies Reviewed, Boston 
(1769), pp. 16 and 17. 

50 Franklin’s Works, (Biglow Ed.), IV. 131. 

“The right of Great Britain to regulate the trade of the colonies shall 
be admitted; but that ithe duty on tea is a regulation of trade, this is a 
matter of controversy.” From, “‘The Other Side of the Question, or a 
Defence of the Liberties of North America, in reply to a Late Friendly 
Address to all Reasonable Americans,” by a Citizen, New York, (1774) p. 11. 


2 «The boasted distinction between taxes for the regulation of trade and 
taxes for the purpose of raising revenue, we see therefor is a distinction 
without a difference, and it will in no sort serve to protect the colonies 
from parliamentary internal and external taxation, however much it may 
serve as a pretence under which to strip Parliament of all jurisdiction 
over the colonies.” From The Controversy, etc., p. 19. 

534 Letter From the Country to a Gentleman in Philadelphia” signed 

“Rusticus,’ and published as a broadside. _ Reprinted in Life and Writings 
of John Dickinson, II. 461. 


TAXATION AND REPRESENTATION 81 


quent actions down to the actual Declaration of Inde- 
pendence are witness to how anxious he was to preserve 
the integrity of the empire. 

Dickinson’s reasoning certainly forced Franklin to 
abandon his position of drawing distinctions between the 
kinds of taxes Parliament could and could not impose and 
led him to that position which he was finally obliged to 
take of denying any power in Parliament over the col- 
onies. But now Franklin in turn scouted Dickinson’s 
finely drawn distinction and turned his face definitely in 
the direction of independence. Yet it was somewhere 
between these two theories that the problem of construct- 
ing a league of self-governing commonwealths must find 
its solution if at all. Being strictly logical was fatal at 
this stage of the controversy. No doubt there is much to 
be said for Franklin’s conclusion, “the more I have 
thought and read on this subject, the more I find myself 
confirmed in the opinion that no middle ground can be 
maintained; I mean not clearly, with intelligible argu- 
ments. Something might be made of either of the ex- 
tremes, that Parliament has the power to make all laws 
for us, or that it has the power to make no laws 
for us; and I think the arguments for the latter, more 
weighty and numerous than those for the former.”54 
Moreover, there is cogency in his comment: ‘The sover- 
eignty of the crown I understand; the sovereignty of the 
British legislature outside of Britain, I do not under- 
stand.”®> But discussions which involve the term “sov- 
ereignty” are often more apt to be academic than illumi- 
nating. Hence it was that Dickinson attempted to take 

54 Franklin had said in 1768 in a letter to his son: “I am not yet master 
of the idea these [the Farmer’s Letters],and the New England colonies 
have of the relation between Britain and her colonies; it being difficult 
to draw lines between duties for the regulation of trade, and those for 
revenue; and if parliament is to be the judge, it seems to me that estab- 


lishing such a Fee of distinction will amount to little.’ Franklin’s 
Works, (Biglow Ed.), I 130. 


55 Notes on replies re the House of Lords protest against the repeal 
of the Stamp Act. Ibid., III. 483. Franklin coinlieed the expressions 
common at the time about the colonies being attached to the crown, and 
not to the realm; from which it followed that the King ruled Massa- 
chusetts through the General Court of Massachusetts, and Great Britain 
through the Parliament at ret, and that the two were co-ordi- 
nate legislative bodies. Ibid., III. 490 


82. POLITICAL IDEAS AMERICAN REVOLUTION 


his stand on that untenable middle ground, and to under- 
stand that incomprehensive assertion of jurisdiction by 
the British legislature outside of Britain when such a 
thing was necessary to preserve the integrity of the Brit- 
ish Empire Commonwealth. The question may then be 
fairly propounded, whether the history of the British 
Empire from 1783 to the present does not in fact vindi- _ 
cate the opinion of John Dickinson that “tacit acquies-~ 
cence” in the “superintending authority of the British 
Parliament”? would prove a practical way to solve the 
problem of the empire’s organization.®°® Dickinson be- 
lieved the empire worth keeping together, and the fact 
that, despite the action of the American colonies in 1775, 
the empire has kept together, is again, in some measure, 
a vindication of his opinion.®* Perhaps it is fair to say 
that, after all, Dickinson was on the right track as far as 
reconciling the differences between the two parts of the 
empire was concerned, and he differed from the more 
radical New Englanders because he was sincere about it. 
But within a year of the final break the two earlier dis- ; 
tinctions had been pretty well abandoned, and the consti- 
tutional phase of the taxation controversy had taken on 


56 Dickinson, in his effort to find the suitable compromise ground, re- 
marked, ‘“‘As they were members of one great Empire, united under one 
head _or crown, they tacitly acquiesced in the superintending authority of 
the Parliament of Great Britain and admitted power in it to make regu- 
lations to preserve the connection of the whole entire, though under color 
of this sundry regulations were made that bore hard on the colonies, 
yet with filial respect and regard for Great Britain, their Mother Country, 
the colonies submitted to them.” This exercise of jurisdiction by the 
“British legislature outside. of Britain,’ he, unlike Franklin, not only 
understood, but advocated. The trouble was that a “new party had lately 
arisen in England, who under color of the superintending authority 
of parliament, are laboring to erect a new sovereignty over the colonies 
Inconsistent with Host or freedom.’’ From _ Dickinson’s Address Read 
at the Meeting of the Merchants in_Philadelphia, 1768. In his Life and 
Writings, II. 411-3. At least one Englishman had the vision to propose 
the solution: “First, that we should leave the Americans to tax them- 
selves: secondly, we should retain to the British Parliament every power 
that is not inconsistent with our justice and their liberty; that a law should 
be passed immediately repealing every act that taxes the colonies. I do 
not propose that it should contain any counter-declarations, or that power 
will be in terms disclaimed. It will be sufficient that they be repealed 
and that we do not revive the claim.” The Case of Great Britain and 
America, Addressed to the re Ya Both Houses of Parliament, (London; 
Philadelphia reprint, 1769), p 


5 See John Adams, Diary, tai (C. F., Adams Ed.), IT. 409, for Dick- 
inson’s strenuous efforts at reconciliation six months after the battle at 
Lexington had been fought. 


TAXATION AND REPRESENTATION 83 


that appearance of ‘“no-taxation-without-representation’’ 


which is the outstanding feature of so many of the utter- 
ances even from the beginning of the dispute. One con- 
temporary critic noticed that the Americans had intro- 
duced “a new distinction” to take the force off their former 
concessions, contending that the duties laid upon the ne- 
cessities of life such as paper, glass and paint, were equiv- 
alent to an internal tax and therefore inadmissible.5® 
Surely this is exactly what the Americans had done, and 
one of their number commented, “I could never be con- 
vinced by their [the Americans’| arguments of the practi- 
cability of drawing a line so near the border of taxation 
as not to encroach upon that ground.”®® A Tory re- 
marked with equal vigor, “Others, finding that the claims 
of the colonists could not be supported on those pillars 
[i.e., natural rights] have racked their inventions to find 
out distinctions which never existed, nor can exist in rea- 
son or common sense: a distinction between the right of 
Parliament to legislate for the colonies and a right to tax 
them [i.e., Pitt’s argument], between internal and ex- 
ternal taxation [1.e., Franklin’s argument], between taxes 
laid for the regulation of trade and for the purpose of 


raising revenue [i.e., Dickinson’s argument].’®° “Shall 


39 66 


we,” asks the “Virginian,” ‘shall we, Proteus-like, per- 
petually change our ground, assume every moment some 
new and strange shape, to defend, to evade? Shall we 
establish distinctions between internal and external taxa- 
tion one year, and laugh at them the next? Shall we 
confound duties and taxes, and regulations of trade with 
revenue laws?’’6! The real issue which should be stated 
and adhered to was “that whatever taxation and represen- 


83 The American Querist: or Some Questions Proposed Relative to the 
Present Disputes between Great Britain and her American Colonies by a 
North American, (1774), p. 20. 

59.4 Few Political Reflections Submitted to the Consideration of the Brit- 
ish Colonies. By a Citizen of Philadel sie (Philadelphia: 1774), p. 17. 
Attributed by M. C. Tyler to Richard 

Joseph Galloway, A Candid ae the Mutual Claims of Great 
Britain and her Colonies with a Plan of Accomodation on Constitutional 
Principles, New York (1775), p. 2. 


614 Letter from a Virginian to the Members of Congress to be held 
in Philadelphia, 1st September 1774, Boston: (1774), pp. 22-3. 


84 POLITICAL IDEAS AMERICAN REVOLUTION 


tation might be, taxation and government were. insep- 
arable.” Truly the colonials had come a long way since 
Chatham’s day, for what he lauded as “essential to lib- 
erty” was now a “protean monster.” Drayton, the “Free- 
man of South Carolina,’ represents in 1774 as much of 
an advance over Dickinson, as Dickinson did over Dulany 
in 1768. For, said he, “any taxation or legislation by 
the British Parliament over America without her consent 
is no better than mere tyranny.’ ®? 

By the year of the Revolution, the various forces of dis- 
cord between Britain and America had combined, and 
the resultant did not take the direction which would have 
found a place for the thirteen colonies within the British 
Empire Commonwealth. Mr. Locke’s dictum that it was 
a fixed and unalterable principle in the nature of things, 
and a part of the very idea of property, that when a man 
hath honestly acquired—that cannot be taken from him 
without his consent, had become inextricably entangled 
with the disputed powers of Westminster. Their product 
was the slogan, “no taxation without representation,” 
which, among other things, was certainly a criticism of and 
a protest against the defective imperial machinery. It 
might have been met either by a cessation of taxation or 
by a grant of representation. The Americans were not 
at all one on the desirability of sending members to West- 
minster, but in either case the prime requisite was a really 
cooperative spirit. The Americans had certainly shown 
a cooperative spirit, if by nothing else, by their willing- 
ness to pass through the stages of making concessions in 
the matter of “internal and external’ taxes, taxation and 
trade regulation, and the like. Not all the Americans had 
manifested this spirit, for many a one had struck at the 
doctrine of no taxation without representation from the 
very beginning of the controversy. Yet enough, both in 
quantity and quality, of the colonials did take other stands 
to enable us to conclude that the codperative spirit was 


6 William Henry Drayton, A Letter from a Freeman of South Carolina, 
to the deputies of North-America, assembled in the High Court of Congress 
at Philadelphia.. (Charlestown, S. C., 1774), Reprinted in R. W. Gibbes, 
Documentary History, p. 29. 


TAXATION AND REPRESENTATION 85 


present in America. The colonists demanded a correct 
definition of their status as members of the empire-com- 
monwealth. Before the outbreak of the Revolution there ~ 
was not such an overwhelming proportion of irreconcil- 
ables as would make the Revolution inevitable. True, 
America had been settled to a large extent by non-con- 
formists; but non-conforming Quaker Pennsylvania was 
among those least inclined to an open break. True, the 
trade and navigation acts were extremely galling; but far 
from learning a lesson from the American Revolution, 
Great Britain did not give up those trade and navigation 
acts for half a century more, during which a new overseas 
empire was being built up. True, George III had a 
German mentality and was also an obstinate man; but are 
these efficient historical causes ?®2 Yet the act of sitting 
on the safety valve is, politically speaking, often an effi- 
cient historical cause. That is what the refusal to grap- 
ple with the imperial problem really amounted to. Inflex- 
ible political machinery which attempted to define an 
empire commonwealth in terms of the Kingdom of Great 
Britain was just such a cause. America and Britain in 
the two centuries had grown apart very clearly and defi- 
nitely, as the social and economic historians have demon- 
strated. The only hope of preserving the empire lay in 
reforming the political machinery so that it would con- 
form to the requirements of the new situation. The fore- 
going pages are an effort to present what evidence there 
is in the taxation controversy for saying that some men 
were making efforts to fit the old machine to the new 
situation. 


& My colleague, Dr. Laprade, insists that the real explanation of George’s 
obstinacy was not his German ancestry, but the fact that he was educated by 
the Scotch Lord Bute into the political philosophy of the Jacobites. 


CHAPTER V 


JOHN ADAMS AS A BRITANNIC STATESMAN 


With the single exception of the United States, all of 
the English-speaking people are members of a common 
political organization. Yet in looking through the his- 
tories for a record of the efforts of far-seeing statesmen 
who tried to grapple with the problem of the British Em- 
pire as such, in the days before the American Revolution, 
we are apt to find the story eclipsed by the moving narra- 
tive of the thoughts and deeds of those who, without a 
vision of the commonwealth of nations, hastened on to 
effect that single break in the political union in which all 
other English-speaking nations participate. During the 
period in which it was customary to look upon the Ameri- 
can Revolution as something intrinsically good, the deliver- 
ance of a freedom-loving race from the tyranny of Parlia- 
mentary blockheads, men like Samuel Adams, John Han- 
cock,and Patrick Henry could hold the center of the stage. 
With the growing recognition of other elements in the 
struggle, more consideration has been accorded to another 
group, the Hutchinsons, the Galloways, and the Coopers, 
whom the last century branded as Tories but whom we 
are now more willing to style “loyalists.” There was yet 
another group, less eloquent than the first, more practical 
than the second, to whom attention may be directed with 
the confidence that the twentieth century will have a more 
sympathetic understanding of their efforts than had either 
the eighteenth or nineteenth. 

Many of the ringing voices that proclaimed liberty and 
the rights of man under government in Fanueil Hall and 
in the Virginia House of Burgesses before the war were 
strangely silent in Independence Hall when the war was 
won. Otis had passed away; Patrick Henry and Richard 


[86] 


JOHN ADAMS BRITANNIC STATESMAN 87 


Henry Lee were openly hostile to the Constitution,! while 
that instrument was accepted in Massachusetts rather with 
the silent consent than with the enthusiastic support of 
_ those fathers of the Revolution, Samuel Adams and John 
Hancock.2, There was another group, less tumultous as 
orators, more thoughtful as statesmen, who lived through 
the struggles from the Stamp Act to the formation of the 
government under the Federal Constitution, whose voices 
were heard loyal to the British Empire up to the very end 
when the break came in 1775, and who lived to construct 
the new political union of semi-sovereign states in 1787. 
John Adams is not selected as representative of this group 
because he was necessarily its most brilliant member, for 
the most brilliant man of any period is seldom represen- 
tative in any historical sense. He is selected rather be- 
cause he was consciously a political scientist in the sense 
in which very few of his contemporaries were. His was 
a day of political philosophy; perhaps there never has 
been a period in which men so delighted to speculate in 
general terms upon the abstract propositions of human 
government. Yet of political scientists in the modern 
sense, there were few. A man willing and able to study 
government experimentally and by observation had need 
of a more profound mental equipment than he who could 
content himself with making the rafters of the town hall 
ring with his denunciations of whatever object of his 
wrath. 

Political historians have told us in these later days what 
the Revolution was all about, but there is some advantage 
in knowing what a political scientist of that day conceived 
the central issue to be. John Adams contended that the 
problem was primarily political, that the dispute hinged - 
upon a problem of state organization, that “the funda-_ 

1 William Wirt, Patrick Henry, (15th Ed.) Ry 287; R. H. Lee, Obser- 
vations Leading to a Fair Examination of the ‘ystem of Government, and 


Several Essential and Necessary Alterations in it: In a Number of Letters 
from The Federal Farmer to the Republican, (New York: ). 


2j.. K. Hosmer, Samuel Adams, pp. 392-401. See Col. Jos. May’s in- 

teresting estimate of the attitude of "Adams and Hancock, reprinted in Wells’ 

ife of Samuel Adams, III. 258. A recent biographer of Hancock is dis- 

_ posed to be more lenient with es L. Sears, John Hancock, the Pic- 
turesque Patriot (1912), pp. 286-7. : 


88 POLITICAL IDEAS AMERICAN REVOLUTION 


mentals of government” were at stake. A man is apt to 
interpret events in terms of his specialty, so to a man of 
his type we must go to discover whether there was a con- 
temporaneous appreciation of the political problem to 
which in one sense the passage and repeal of Stamp and 
Navigation Acts were only incidental, the problem of the 
relations between the various dominions of the British 
Empire. 

In the decade before the Revolution, John Adams was 
. among those who tried persistently to attack the question 
“ as a constitutional one and to make his fellows under- 
stand it as a problem of government or political science. 
Yet, strange as it may seem, this is a distinctly neglected 
period of his life. A recent historian of the political 
science of John Adams hurries on to that later period of 
the Constitution and the Presidency, neglecting almost 
entirely the period before the Revolution. That same 
author is obliged to begin work with the remark, “the 
theory reviewed in this work is obsolete.” But the period 
neglected is full of ideas which are only just now be- 
ginning to come into vogue.t So, too, the historian of 
the literature of the Revolution assures us that one of the 
chief sources for this period is ““a vast morass of technical 
discussion, into which no living reader will ever follow 
the writer, and from which the writer himself never 
emerges alive.”® This period of Adams’ political writing 
furnishes the material for that neglected field which it 
is proposed here to examine. The “‘vast morass of tech- 
nical discussion” might have been jargon at a time when 
the expression “league of nations” had not come into our 
vocabulary, but today it yields some interesting data for 
an unwritten chapter of British imperial history.® 


3 The Works of John Adams (C F. Adams Ed. 1856), cited herein, IV. 33'. 

4C. M. Walsh, Political Science of John Adams, oe in which but 7 
of 361 pages are devoted to the period from 176 5-8 

5M. C. Tyler, Literary History of the American ae I. 392. 


SA. D. Morse, The Politics of John Adams, Amer. Hist. Rev., IV. 292, 
considers 1775 the starting point for a study of John Adams’ politics. 
Cc Merriam, History of American Political Theories, also euipbasizes 
the later rather than the earlier period of John Adams’ career. pp. 125-41. 
Both writers seem to me to ignore the most important things John aes 
ever wrote. 


JOHN ADAMS BRITANNIC STATESMAN 89 


It is essential to an understanding of John Adams that 
we keep in mind his temperate mental processes. Your 
radical is not infrequently found today advocating ex- 
treme political and legal measures for the amelioration of 
human ills, and tomorrow is heard to express his disgust 
with all purely human and rational methods of solving 
human difficulties. Today he may advise political re- 
form, and tomorrow throw overboard all politics, eco- 
nomics and law, taking refuge in religion or spiritual 
philosophy. Without passing any judgment upon the 
merits of such procedure, it is fair to say that a more ab- 
stemious thinker is likely to make a more solid contribu- 
tion to the discussions incident to the task of improvising 
governmental machinery. It may not be unprofitable then 
to explore the field of thought of one who, while he ac- 
knowledged human limitation, believed in doing the best 
possible with what was at hand and tinkered with current 
institutions in an effort to leave them at least a little better ~ 
than he found them. Of such a sort is the contrast be- 
tween John and Samuel Adams. In an interesting ex- 
change of letters between the two cousins in 1790 we 
discover the erstwhile political radical rather despairing 
of the usefulness of politics, disillusioned and fearful lest 
after all the Revolution had been but the substitution of 
one set of tyrants for another.’ He felt that the true 
solvent of human ills lay in “impressing the minds of men 
with the importance of educating the little boys and girls,” 
and training them in those spiritual values by which alone 
any progress can be made.$ The rejoinder of the political 
scientist cousin, John Adams, leads us to believe that the 
President of the United States was a little more sincere, 
patient, and profound politician than the Governor of 
Massachusetts. For he admitted without question the 
value which the other attached to benevolence and enlight- 
enment as the ultimate solution, but, he inquired, was not 
this asking people to demonstrate something which they 

7 Four Letters: Being an Interesting Correspondence between those emi- 


nently Distinguished Characters, John Adams and Samuel Adams; (Boston: 
1802), Works, VI. 405. 


STbid., VI. 414. 


90 POLITICAL IDEAS AMERICAN REVOLUTION 


did not yet understand? Could one solve problems in 
calculus before he had graduated from simple arithmetic? 
It was not right to advise the people to “depend for their 
safety, liberty and security on hopes and blessings which 
we know will not fall to their lot.”® Rather should they 
be advised not to cleave to “the love of liberty in the soul 
of man for its preservation,’ but to understand that it 
were well that ‘‘some political institutions be prepared” 1° 
upon which man could lean during the period of his spirit- 
ual apprenticeship. 

Abundant is the evidence of the love of John Adams 
for the subject of government as an object of intellectual 
curiosity and activity.1!_ But in addition he possessed a 
political imagination which transcended the bounds of 
merely colonial concerns. Eulogized as the “first states- 
man of the Revolution” because he had “a sublime intui- 
tion of nationality’? which he had seen through all the ages 
in the victorious van, his imagination kindled by the his- 
toric review” that “led him in later years to head the 
movement that realized the prophetic vision of his youth,” 
he was also a great deal more than this.12 For the world 
is beginning to understand that “the intuition of nation- 
ality” is not an unmixed blessing, and to look deeper for 
really statesmanlike qualities.1% 

Focusing our attention, then, upon the earlier period of 
Adams’ life, which the nineteenth century might well neg- 
lect, but which the twentieth reveals as concerned with a 
political problem which will no longer brook delay or 
evasion, we discover something more than a zealous advo- 


*Tbid., VI. 415-6. 


10 Almost any few pages of the diary will convince the reader that John 
Adams fully understood his cousin’s point of view; e, g., III. 423. 


11 A familiar one, ‘I know not how it is that mankind has an aversion 
to the study of the science of government. Is ae bar the subject is 
dry? To me no romance is more entertaining.’”’ IX. 


% Mellen Chamberlain, John Adams and Other. noe (1898). The theme 
of this essay is that John Adams saw the United States as a separate nation 
very early, and that his subsequent elevations were a triumphant _vindi- 
cation. This leads away from the subject of efforts to solve the British 
Imperial problem and to preserve the empire. Chamberlain does not do 
justice to John Adams, but does about as well as a nineteenth century 
writer could be expected to do. 


13 E, H. Morse Stephens, Nationality and History, Amer. Hist. Rev., 
XXI. 238. 


JOHN ADAMS BRITANNIC STATESMAN 91 


cate of American independence. The problem of the 
political constitution of the British Empire reached a 
critical stage with the passage of the Stamp Act of song 
and story, “an enormous engine fabricated by the British 
Parliament for battering down all the rights and liberties 
of America,” whereat “our presses have groaned and our 
pulpits have thundered, our legislatures have resolved and 
our towns have voted.”14 Four years earlier, when James 
Otis’ speech on the writs of assistance had stirred him so 
deeply, John Adams knew where he stood in “the contest 
that opened at that time, of which he could foresee no 
end.”15 Upon hearing of the passage of the Stamp Act 
in 1765 he did what was characteristic of the law-loving 
and academically inclined among the Puritans: he called 
a town meeting in his native village of Braintree. Equally 
characteristically went he to that meeting with his ideas 
already on paper in his pocket.1° Knowing what he 
wanted, he was appointed on the inevitable Committee on 
Resolutions, which, upon “withdrawing to Mr. Niles’ 
house,’ opened up to him the opportunity to produce the 
paper which he had prepared. Such was the character 
of its contents that it was promptly and “unanimously 
adopted without amendment, reported to the town, and 
accepted without a dissenting voice.”17 So accurately did 
his ideas represent the thoughts of the inhabitants of 
Massachusetts that his resolutions were widely employed 
throughout the colony for similar purposes, and their 
author records that even Samuel Adams, commissioned 
to do a similar task for Boston, “took into his some para- 
graphs from mine.” !§ 

In this document, and in another which appeared about 
the same time, are found some salient points on the con- 
stitution of a league of self-governing states. The other 
document, intended as a legal study, made the pertinent 


14 Diary, II. 154. 
% Diary, II. 125. 
16 Diary, II. 152-3. 


._ Instructions of the Town of Braintree ie pee Representatives (1765), 
Boston Gazette, 14 Oct., 1765, Works, III. 


8 Diary, II. 154. 


> 


92 POLITICAL IDEAS AMERICAN REVOLUTION 


inquiry, “is there not something extremely fallacious in 
the commonplace images of a mother country and children 
colonies? Are we the children of Great Britain any more 
than the cities of London, Exeter and Bath?”’!9 To the 


statesman of the overseas dominions the British Empire ~ 


must be an empire of equals. The town-meeting resolu- 
tions yield an equally basic rule of constitutional law. 
Otis had said, “An act against the constitution is void.” 2° 
John Adams now elaborated this idea that there could be 
such a thing as an unconstitutional act. Among the pro- 
visions of the British constitution was this, that no man 
could be deprived of his property save by due process of 
law or by his consent. These principles, taken with an- 
other which he confided to his diary at the time, outline 
his conception of the function of constitutional law in the 
political union of the empire.?2!_ The other principle was 
contained in his comment, “The courts have not yet dared 
to adjudge the Stamp Act void.”’22 Picking our way 
through the discussion of natural law, natural rights, com- 
pacts, and contracts, which were part of every eighteenth 
century philosopher’s stock in trade, we discover a virtual 
identification of these rights with the provision of the 
British constitution.23 Insofar as this is a mere con- 
fusion of intellectual and political philosophy, we can 
profitably dispense with it. But insofar as it foreshad- 
ows a political union based on legal relationships, we have 
in embryonic form the conceptions of imperial relation- 
ships which the later writings of this period make clear. 


Three ideas thus emerge: first, that the empire was an | 
association of equals; second, that the British constitu- ; 


tion was a superior law, whereby the relationships of the 
constituent parts of the empire could be made clear, and 


\ third, that it was the function of the judiciary to disallow 


19 Dissertation on the Canon and Feudal Law, Works, Ill. 445; Cf. John 
Andrews, History of the Late War: (London: 1783), p. 61. 


20 Appendix, J. Adams, Works, II. 525. 

21“‘We further apprehend that this tax is snconstitane as ete.” Instruc- 
tions to the Representative of Braintree, III. 

2 Diary, II. 155. “The Stamp Act ought ‘a fe gee ey the judges as 
against natural equity and the constitution.” Diary, I 


23J. Adams, Works, III. 453. 


o~ 


re 


JOHN ADAMS BRITANNIC STATESMAN 93 


as unconstitutional an act of one of the legislative organs 
of the empire which did not comport with the superior 
law under which all existed or which attempted to impose 
the will of one of the partners upon another in violation 


ae 


of the fundamental understanding and its guarantees.2+ ~ 


Evidences of this conception of the nature of the empire 
are vague at first, but as this was and is a concept which 
is not to be grasped in a short time, one may observe with 
interest that now frequently recurring entry in his diary: 
“At home today ; thinking.” 

But John Adams was not yet done with the Stamp Act. 
Since the lawyers would not use stamped legal paper, the 
Governor of Massachusetts had closed the law courts. In 
December of 1765 came the argument before Governor 
Bernard in which Gridley, Otis, and John Adams tried to 
convince his excellency that the courts should be reopened. 
The parts played by the three are instructive. Had his- 
torians made less of the fact that the Stamp Act deprived 
John Adams of a lucrative law practice2° and more of the 
fact that it gave him opportunity to state and to study the 
imperial problem, we might sooner have had our attention 
directed to the latter question. Gridley, as crown counsel, 
apparently dared not,?® and Otis, if we may judge from 
his previous writings, could not, touch the underlying 
issue which the junior counsel on this occasion presented.27 
Perhaps they, too, saw it, but if we may believe the record 
they failed to urge the point.28 Adams pondered upon 
the course he was to pursue. Conscious of his obligations 


24 “Clarendon” to the Boston Gazette, 27 Jan., 1766, III. 480; cf. IV. 99. 
25 Diary, II. 155. 
27°C. F. Adams, Life of John Adams, I. 78. 


27 James Otis, Vindication of the Conduct of the House of Representatives 
of Massachusetts Bay, (Boston: 1762). “... ’tis admitted that the Par- 
liament have the same right to levy internal taxes on the colonies as to 
regulate their trade; and that the right of levying both is undoubtedly 
in Parliament” p. 29. Also his Rights of the British Colonies Asserted and 
proved (Boston: 1764), of which his friend and biographer, William 
Tudor, has to admit, “There is a degree of incoherence in the reasoning, 
which grew out of contradictory principles, that were irreconcilable, the 
entire rights of the colonies and the absolute supremacy of Parliament.” 
Life of Otis (Boston: 1823), p. 501. Hutchinson also noticed this: cf. 
Thomas Hutchinson, History of the Province of Massachusetts Bay, (Lon- 
don: 1838), III. 133. 


28 Diary, II. 159. 


94 POLITICAL IDEAS AMERICAN REVOLUTION 


_# one» ee 


of “interest and ambition, as well as of honor, gratitude © 
and duty, to exert the utmost of his abilities” in this im- — 
portant cause, he reflected on whether he should adopt — 


the constitutional argument, or “shall we ground ourselves 
in necessity only?” Apparently he left the latter course 


to his colleagues.2® For himself he argued that “Parlia-— 


ment has no legal authority to impose internal taxes on 
us, because we are not represented there,” and grounded 
his argument “on the invalidity of the Stamp Act, it not 
being in any sense our act, having never consented to it.’’3° 
His notes on this case are illuminating. Pursuing the 
“right, wrong and remedy argument,’ he took the position 


that a wrong had been done for which law must supply a | 
remedy. Since a statute might be construed so that no 
wrong be done, then in law the Stamp Act was no act, was — 


not law, and should be so regarded by the courts. The 
Governor evaded the issue by a significant admission that 
these were arguments which should be laid before a judi- 
cial and not before an executive officer.34 

The next time the curtain rises, John Adams is dis- 


covered trying to keep one of his patriot friends out of — 
well deserved trouble. The story of how in the autumn ~ 


of 1768 John Hancock’s sloop, Liberty, put into Boston 
with a cargo of wines and how the customs officer was 
enticed on board and, when he refused to wink at the 
proceedings, how he was locked up in the cabin while 
most of the wine was unloaded by the captain and crew 


who worked so hard that the captain died of heart failure © 
the next day, shows how much respect some good citizens — 
had for those trade regulations which they admitted Brit-— 
ain had a right to make. The upshot of this act of — 


smuggling was that “a great uproar was raised in Boston,” 
and John Adams was retained to appear in defense of 
Hancock.?2. This case gave opportunity for a general 


29 Diary, II. 157. 
80 Diary, II. 158. 
4 Diary, II. 159. 


2 Cf. William Gordon, History of the Rise, Progress and Establishment 
of the Independence of the United States of America, (London: 1788), I. 
231 ff., and Hutchinson, History, III. 189. 


JOHN ADAMS BRITANNIC STATESMAN 95 


assault on the navigation acts as being unwarranted from 
the standpoint of constitutional law, as was any other 
law imposing taxes which might be made without con- 
sent. “My client, Mr. Hancock, never consented to it, 
he never voted for it himself, and he never voted for any 
man to make such a law for him.” 3? . Constructive con- 
sent and virtual representation were but “‘cries to deceive 
the mob,’ and such a conception of the nature of the 
organization of the empire would lead to that region 
“where arbitrary power sits upon her brazen throne and 
governs with an iron sceptre.” 

The constitutional argument was continued in 1773 
when there occurred an exchange of addresses between 
the Governor, Hutchinson, and the two houses of the 
Massachusetts General Court, in which the differing views 
of the nature of the construction of the empire were 
clearly revealed.?4 The dispute, historically of intrinsic 
value, provided John Adams with yet another opportunity 
to descant on the relationship between the self-governing 
states of the imperial union. The Governor opened with 
a speech to both houses in which he stated positively, 
though perhaps not profoundly, “when our predecessors 
first took possession of this plantation it was their license 
and the sense of the Kingdom that they were to remain 
subject to the supreme authority of Parliament,’?> and 
“T know of no line that can be drawn between the supreme 
authority of Parliament and the total independence of the 
colonies.” °° Since many a wiser man than Thomas 
Hutchinson has gone on the rocks of sovereignty in try- 
ing to steer his ship between the independence of a state 
and the jurisdiction which regulates its mutual relations 
with other states, this pronouncement of the Governor is 
of more immediate interest as discovering the existence 
of a political problem than it is of revealing the wisdom 


33 Diary, II. 215, and note. 

*4 Papers in this controversy appear in The Speeches of the Governors of 
Massachusetts from 1765-1775 and the Answers of The House of Repre- 
sentatives to the Same etc., (Boston: 1818), usually cited as Bradford’s 
Mass. State Papers. 

* Tbid., p. 339. 

% Tbid., p. 340. 


96 POLITICAL IDEAS AMERICAN REVOLUTION 


or ignorance of that official. Both houses of the General 
Court appointed committees to draft replies to the Gov- 
ernor. The reply of the Council (the upper house), dis- 
cussed the question of superior and subordinate jurisdic- 
tions from the standpoint of the subordinate.3* But the 
reply of the House of Representatives attacked directly 
the question of the organization of the imperial union. 
The committee of the House consisted of the inevitable 
Samuel Adams-John Hancock group, but inasmuch as it 
was the wish of Major Hawley (who was an influential 
political boss), that the “committee take the opinion and 
advice of John Adams upon every question,” that gentle- 
man, although not a member of the committee, or even of 
the legislature at the time, was “very civilly requested 
and urged to meet the committee, which he did every 
evening till their report was finished.’’?8 Upon the first 
meeting of the committee he found one report already 
drawn up, probably by Samuel Adams and Warren. 
It was “very prettily drawn” and “full of very popular 
talk and those democratical principles which have done so 
much mischief in this country.”*° John Adams “objected 
to all of them” and “got them expunged,’ whereupon he 
furnished the committee with “‘the law authorities, and 
legal and constitutional reasonings which are to be seen 
on the part of the house in that controversy.” A report 
such as the committee had at first proposed was no an- 
swer nor attempt to answer the Governor’s legal and con- 
stitutional arguments, such as they were. Full as it might 
be of the high-sounding principles of liberty, equality, 
and fraternity, John Adams believed that those arguments 
“based on nature and eternal and unchangeable truth” 
ought to be “well understood and cautiously applied,” 
since it was not safe at all times and in all places “to resort 
to club law and the force of arms.” Approaching the 
subject in a more scientific spirit, John Adams’ contribu- 


*7 Thid., p. 383. 
38 Diary, Il. 311. 


%° So at least Adams says, Diary, II. 312; but his judgment in these mat- 
ters was not infallible, as cf. his mistake about ‘‘Massachusettensis” 


# Autobiography, II. 310; cf. Tudor’s Life of Otis, p. 411n. 











JOHN ADAMS BRITANNIC STATESMAN 97 


tions had ‘‘an effect on public opinion which was quite 
beyond expectation,” and forty years later the author was 
still exulting in his triumph. “Mr. Hutchinson made a 
meagre figure in that dispute. He had waded in beyond 
his depth. He had wholly misunderstood the doctrine of 
allegiance.” #4 

«Indeed Adams’ doctrine of the nature of the empire 
hinged very largely upon the doctrine of allegiance. The 
distinction between allegiance to the crown and allegiance 
to the realm of Great Britain was a common one in the 
thought of the colonial politicians of the more conserya- 
tive group.42 The acquisition of the colonies of America, 
so the House informed the Governor, “‘was an acquisition 
of foreign territory, not annexed to the realm of England, 
and therefore at the absolute disposal of the crown.” For 
that reason, “James I created the two Virginia Companies 
to be governed each by the laws transmitted by them to 
his Majesty, and not to Parliament,” and “a declaration 
similar to this is contained in the first charter of this col- 
ony, and in those of the other American colonies, 
which shows that the colonies were not intended or con- 
sidered to be within the realm of England though within 
the allegiance of the English crown.”42 The danger of 
translating these expressions into modern parlance is no 
excuse for neglecting or ignoring this popular idea in 
colonial politics. In essence the colonies were held to be 
part of the empire, but not an appendange of the King- 
dom, so that the Parliament at Westminster had no more 
right in law to legislate for Massachusetts than had the 
provincial legislature of New York. 

The Governor’s argument had elaborated the theory that 
the clause in the various colonial charters which vested in 
the colonial assemblies the power and authority to make 
such laws as were not repugnant to the laws of England, 


_ should be interpreted to mean that no colony could make 


“Jj. Adams to William Tudor, II. 313. 

“E. g., John Dickinson’s Draft of Resolutions for the Stamp Act Con- 
gress, in his Works, (Memoirs of the Penna. Hist. Soc. XIV), p. 184; 
and James Wilson’s Considerations on the Nature and Extent of the Legis: 


| lative Authority of the British Parliament, (Phila. 1774). 


# Mass. State. Papers, p. 353. 


98 POLITICAL IDEAS AMERICAN REVOLUTION 


a law contrary to the law of Parliament. “This was a 
reserve of power and authority to Parliament, to bind us 
by such laws at least as are made expressly to refer to us, 
and consequently is a limitation upon the power of the 
General Court.”*4 But the colonial statesmen attached a 
different significance to these words. The charter was a 
grant of the King and vested the authority to make laws 
“so always that the same be not contrary to the laws and 
statutes of this our realm of England.” But this meant 
that the laws of the colonies should be as much as pos- 
sible conformable to the principles and the fundamental 
laws of the English constitution, its rights and statutes, 
then existing, (i.e., at the time the charter was granted), 
and by no means was meant to bind the colonies to a sub- 
jection to the supreme authority of the English Parlia- 
ment.”#5 And that this is the true intention of such pro- 
vision in the charters is evidenced by the fact that “no 
acts of any colony legislature are ever brought into Par- 
liament,” although “they are laid before the King.” 46 
In further support of this view came John Adams’ array 
of constitutional precedents which made Mr. Hutchinson 
cut such a sorry figure. Charles I had refused assent to 
a certain Parliamentary enactment, declaring as a reason 
that “the colonies were without the realm and jurisdiction 
of Parliament,” and James I had asserted that “America 
was not annexed to the realm and it is not fitting that . 
Parliament should make laws for these countries.” 47 
If then the colonies were not annexed to the realm, they 
are not “part of the Kingdom of Great Britain and conse- 
quently are not subject to the legislative authority of that 
kingdom.”48 Within the understanding of the colonials 
the charters had conveyed all the power necessary for the 
constitution of free and distinct states, and such they were 
as far as their relation with the British Parliament was 
concerned. All this was bolstered up with the legal 

4 Mass. State Papers, p. 339. 

“ Ibid., p. 354. 

“Ibid., p. 355. 

“tIbid., p. 355. 

#8 Mass. State Papers, p. 339. 


JOHN ADAMS BRITANNIC STATESMAN 99 


authorities which “no man in Massachusetts at that time 
had ever read.” Hutchinson and his supporters dared 
not deny the argument, “lest the book be produced to their 
confusion,” and hence the Governor could but wriggle to 
evade what he had neither wit nor wisdom to confute.*? 

In his insistence on the distinction between allegiance 
to the realm and allegiance to the crown, John Adams had 
commented: “No country by the common law was subject 
to the laws of Parliament, but the realm of England.’’5° 
Hutchinson had ventured to attack this, whereupon Sam- 
uel Adams wrote post-haste to the real author of the 
House’s reply, saying, “the assertion is mine, but upon 
your authority,” and he asked his cousin for the ammu- 
nition with which to combat the Governor.®! That the 
latter’s position was “‘vindicable” is made clear in the next 
act of the drama, which reveals John Adams the pam- 
phleteer. In that year in which, apparently for the first 
time, His Majesty heard of a new unruly Adams across 
the seas,°? the Boston Gazette printed the series of papers 
that have come down to us above the signature of 
“Novanglus.” Written in reply to two Tory utterances, 
the pamphlet of “Veteran’’>? and the articles of “Massa- 
chusettensis,’®+ the ‘“Novanglus’” papers are literally a 
“History of the Dispute With America, from its Origin 
in 1754 to the Present Time, 1774.” It is difficult to read 
the early numbers without feeling that the substitution of 
the term “loyalist” for the term “Tory” has lost us some- 
thing. It is unfortunate that the latter term has acquired 
an opprobrious connotation, for ‘“Tories” are exactly what 


4 Letter to William Tudor: John Adams’ Works, IL 313 

%© Mass. State Papers, p. 354. 

51 Diary, II. 310-11, where this letter is reprinted in facsimile. 

82 Diary and Letters of Thomas Hutchinson (1884), I. 163. 

53.4 Letter from a Veteran to the Officers of the Army encamped at 
Boston. (Boston: 1774), which has a good deal more merit than Adams 
allowed to it. 

°4 Novanglus and Massachusettensis, (Boston: 1818), in which edition the 
papers of ‘“‘Novanglus’” are very inappropriately printed first. Works, 
IV. 3. As late as 1819 John Adams was still attributing “‘Massachusetten- 
sis’ to Jonathan Sewall, but in 1821 there is evidence that he had come 
to understand that Daniel Leonard was its author. On this point see 
J. Winsor’s Critical and Narrative History, M. C. Tyler’s Literary History 
of the Revolution, and Adams Works, IV. 10. 


100 POLITICAL IDEAS AMERICAN REVOLUTION 


the “Veteran” and “Massachusettensis” were to the Whigs 
of their day. The first instalment of ‘““Novanglus” runs 
the whole gamut of the age-long liberal-conservative, 
Whig-Tory, radical-reactionary arguments. The Tories 
insisted that the political principles of the colonial Whigs 
might be “all right in theory but wouldn’t work in prac- 
tice.’ Novanglus replied that this was a most unscien- 
tific remark; if a thing didn’t work out in practice it was 
because it wasn’t all right in theory, and that as far as 
his observation of the English political laboratory was 
concerned, the theories for which he stood had been suc- 
cessfully practiced since the days of Magna Carta. The 
Whig principles were nothing new, they were simply the 
old and tried precepts of English legal and constitutional 
experience, and to say that in certain instances they were 
not applicable was like saying that in certain instances the 
law of gravity did not operate.°> The argument then 
moved along the usual channels; to the allegation that the 
colonies should be more patient, that “a small mistake in 
policy has often furnished a pretense to libel the govern- 
ment, and persuade the whole people that their rulers are 
tyrants, and the whole government a system of op- 
pression,” “Novanglus’” counters that “on the contrary, 
there never was a government yet in which thousands of 
mistakes were not overlooked. The most sensible and 
jealous people are so little attentive to government that 
there is no instance of resistance until repeated and mul- 
tiplied oppressions have placed it beyond a doubt that 
their rulers have formed settled plans to deprive them of 
their liberty,’ for indeed “Machiavelli himself allows that 
not ingratitude but much love is the constant fault of the 
people.”°° To the contention of his adversaries that re- 
sistance will net the people nothing in the long run, he 
replied that he regarded that as equally wrong as to say 
that “the people are the sure losers in the end.” “They 
can hardly be losers if unsuccessful, for if they live they 
will be but slaves, and if they die, they cannot be said to 


55 Novanglus, IV. 15. 
56 Novanglus, IV. 17. 


JOHN ADAMS BRITANNIC STATESMAN 101 


lose, since death is preferable to slavery.”®" Resistance 
was a well known political weapon in the history of Eng- 
lish politics, and-indeed the opening papers are full of 
watering the tree of liberty with the blood of patriots and 
tyrants. 

With these preliminaries he plunged into that vital 
theme of the whole series, the nature of the relationship 
between the parts of the old British Empire. In this dis- 
cussion his terminology is not always clear, but neither is 
our terminology clear after a hundred and forty additional 
years of experience. From the beginning, let it be under- 
stood, he believed the Parliament at Westminster had 
power to act as an imperial parliament in matters pertain- 
ing to the whole British Empire, such as the regulation of 
commerce or the conduct of war. But, simultaneously, 
we should bear in mind that he considered this a make- 
shift which was due to the absence of other and more suit- 
able imperial machinery. Parliament had a double ca- 
pacity, and when it acted as a Parliament of Great Britain 
it had no relation to the colonies. When acting in its im- 
perial capacity it had only such relation to the colonies as 
they by their consent accorded to it. It was indeed true 
that the colonies were connected with Great Britain, “but 
we never thought Parliament the supreme legislator over 
us. We never generally supposed it to have any authority 
over us, but from necessity, and necessity we thought con- 
fined to the regulation of trade and to such matters as 
concerned the colonies altogether.”®8 ‘The truth is, the 
general authority of Parliament was never generally 
acknowledged in America.”5® ‘Parliament has no 
authority over the colonies except to regulate their trade, : 
and this not by any principle of common law, but merely 
by the consent of the colonies, founded on the obvious 
necessities of the case.”®° The significant aspect of the 
Acts of Trade and Navigation were to this colonial states- 


57 Novanglus, IV. 18. 
58 Novanglus, IV. 49. 
59 Novanglus, IV. 47. 
© Novanglus, IV. 33. 


102 POLITICAL IDEAS AMERICAN REVOLUTION 


man no question of the “old colonial system,” or the mer- 
cantilist school of economics. “Great Britain has con- 
( fined all our trade to herself. We are willing that she 
should, so far as it can be for the good of the empire. We 
\ are obliged to take from Great Britain commodities that 
we could purchase cheaper elsewhere. This difference is 
a tax upon us for the good of the empire. We submit to 
this cheerfully.”®! A curious mixture indeed was all this, 
but it needs no genius to detect the strenuous efforts to 
secure autonomy while at the same time remaining within ” 
vthe circle of the British Empire. This indeed was the /~ 
real task as many men saw, and this determination enabled 
him to repel as “malicious and injurious” the insinuation 
of ‘“Massachusettensis” that what the colonies really de- 
sired was independence.®2 What the Americans wanted 
was a formula that would mediate between absolute de- 
pendence and absolute independence. ‘The Whigs allow 
from the necessity of the case, not provided by common 
law, and to supply a defect in the British Constitution 
which there undoubtedly is, if they are to be governed by 
that law, America has all along consented, still consents 
and ever will consent, that Parliament, being the most 
powerful legislative in the dominions, should regulate the 
trade of the dominions.” ® 
The colonial statesmen frankly admitted that it was not 
necessarily strictly consistent to allow this single exception 
of trade regulation, to the general rule that Parliament 
had no authority over the colonies. But there is nothing 
new in the Anglo-Saxon habit of doing what is practical 
rather than what is consistent in politics. Such a concep- 
tion of the rights and duties of the overseas dominions 
was “founding the authority to regulate our trade upon 
the compact and consent of the colonies, not upon any 
principle of common or statute law, not upon any original 
principle of the British Constitution; not upon the prin- 
ciple that Parliament is the supreme sovereign legislature 


* Novanglus, IV. 46. 
® Novanglus, IV. 52. 
® Novanglus, IV. 99. 


JOHN ADAMS BRITANNIC STATESMAN 103 


over us in all cases whatsoever.”®4 This pronouncement 
illustrates the essential and basic difference between the 
statesman of the kingdom, like Chatham, and the states- 
man of the dominions, like John Adams. To Chatham, 
Parliament had every legislative right over the colonies, 
except that of taxation.°° To John Adams, Parliament 
had no legislative right over the colonies except that of 
trade regulation.°® To Chatham, “the distinction between 
legislation and taxation is essentially necessary to lib- 
erty.”®* To John Adams, “the distinction between taxa- 
tion and legislation has been found to be a distinction with- 
out a difference.”®§ Without passing any judgment on 
the two men, it is worth noticing that the practice of the 
empire has followed the vision of the colonial rather than 
that of the English statesman, and it is no small tribute to 
John Adams that he saw more clearly than Chatham in a 
matter of British imperial concern. 

The eighteenth century mentality grasped the possibili- 
ties of the twentieth century realization. ‘Massachusett- 
ensis’” had mourned that the constitution was gone, since 
the spirit of the colonies had become truly republican. 
To this sturdy “Novanglus” replied, “The constitution is 
not gone’’; moreover the spirit of the colonies is not any 
more republican than the “spirit of the British constitu- 
tion itself was republican.” Why cannot the overseas 
dominions be republican? What is a republic? From 
Aristotle to Harrington the philosophers agree that a re- 
public is a government of laws and not of men,” and the 
dominions might indeed be republican without impairing 
the stability of the empire.6® The real question was 
whether the colonies were a part of the “kingdom of Great 
Britain? We are certainly not a part of the British King- 


“ Novanglus, IV. 99, and cf. James Madison’s comment that this was 
“a practice without a right, and contrary to the true theory of the con- 
stitution” but nevertheless convenient and necessary, and hence permis- 
sable as a measure insuring imperial unity. James Madison’s Works, 
(Hunt Ed.), VI. 374, 

6 Hansard, Parliamentary History, XVI. 100. 

® Nos. 3 & 4 of Novanglus. 

% Hansard, Parliamentary History, XVI. 100-1. 

68 Novanglus, IV. 113. 

*9 Novanglus, IV. 68. 


104 POLITICAL IDEAS AMERICAN REVOLUTION 


dom, realm or state, and therefore the supreme power in 
the kingdom is not upon these principles supreme over 
us.” Yet in this there was nothing inconsistent with the 
admission that the colonies were “within the dominion, 
rule or government of the King of Great Britain.” It 
is easy to see how this might have seemed like hair-split- 
ting in the eighteenth century, but the existence of the 
great self-governing dominions of the British Empire- 
Commonwealth of the twentieth century is an eloquent 
commentary on the distinctions made by the colonial 
statesman of the eighteenth. 

As to an immediate solution, John Adams remarked: 
“No other plan of governing the colonies will ever restore 
harmony between the two countries, but desisting from 
the plan of taxing them, and interfering in their internal 
concerns, and return to that system of colony administra- 
tion which nature dictated and which experience for one 
hundred and fifty years found useful.”™ So he con- 
ceived the empire: different countries united in the person 
of one king. ‘‘Massachusettensis” could not comprehend 
this. “If the colonies are not subject to the authority of 
Parliament, Great Britain and her colonies must be dis- 
tinct states, as completely as England and Scotland before 
the union, or as Great Britain and Hanover now.” To 
which the colonial lawyer replied, “there is no need of 
being startled at this consequence. It is very harmless. 
There is no absurdity in it at all. Distinct states may be 
united under one king; and those states may be further 
cemented and united together by treaties of commerce. 
This is the case. We have by our own express consent 
contracted to observe the Navigation Act, and by our 
implied consent and by long usage and uninterrupted 
acquiescence, have submitted to the other acts of trade, 
however grievous some of them may be. This may be 
compared to a treaty of cormmerce by which those distinct 
states have been cemented together in perpetual league and 
amity. And if any further. ratifications of the pact or 


7 Novanglus, IV. 107. 
71 Novanglus, IV. 98-9. 


JOHN ADAMS BRITANNIC STATESMAN 105 


treaty are necessary, the colonies would readily enter into 
them provided their other liberties were inviolate.”"? By 
such analysis the King was the chief tie which bound the 
empire together in form, and he was “King of Massachu- 
setts, King of Rhode Island, and King of Connecticut” 
as well as King of Great Britain and Ireland,’* and John 
Adams expressed the pious wish that his Majesty might 
be graciously pleased to assume these titles. Of course, 
the colonists had no illusions about the personal authority 
of the King, as they, too, remembered 1688.74 

Throughout the controversy on both sides of the At- 
lantic there had been an appreciation of the fact that “it 
was necessary there should be some superintending power, 
to draw together all the will, and to unite all the strength 
of the subjects of all the dominions in case of war and 
in the case of trade.”*> The trade question was settled; 
let it remain as it was. The administration of war was 
the only outstanding difficulty which demanded any de- 
gree of centralized control, but John Adams did not be- 
lieve that this alone would necessitate a highly centralized 
empire. Perhaps at the outbreak of a war, it might be an 
“inconvenience” that there was no general military author- 
ity, particularly if the colonies couldn’t be coerced into 
supplying their quotas, but that should not entail a com- 
plete surrender of the rights of the dominions. The sen- 
timent and pride of British subjects had been sufficient 
incentive in the past and would be in the future to insure 
the loyalty of the overseas dominions.‘* Experience in 
recent years seems to have vindicated the faith of this 
colonial statesman in the moral and spiritual unity of the 
empire.*7 


@ Novanglus, IV. 113. 

7 Novanglus, IV. 114. Cf. also Bland’s Enquiry, p. 20. 

7™ “This fierce spirit of Liberty is stronger in the English colonies prob- 
ably than in any other people on earth.” ‘They are therefore devoted 
to liberty according to English ideas and on English principles.” Edmund 
Burke, in Hansard, Parliamentary History, XVIII. 491-5. 

™ Novanglus, IV. 115. 

7 Novanglus, IV. 116. 
ae Re: Wrong, Nationalism in the British Empire, Amer. Hist. Rev., 


106 POLITICAL IDEAS AMERICAN REVOLUTION 


In defining the precise constitutional relationship be- 
tween the various dominions, John Adams was confronted 
with the same difficulties that beset one who undertakes a 
similar task today. Yet within the limits of the materials 
of study at his disposal, he certainly made the most 
of his knowledge of English constitutional history. He 
called attention to the nature of the relationship be- 
tween Edward I and Henry VIII. In the thirteenth cen- 
tury Wales was annexed to the dominions of the crown 
of England (12 Edw. 1) by the Statute of Wales (Rhud- 
lan), which was a royal, not a Parliamentary act. In 
this condition, Wales had no representation in Parliament, 
and according to John Adams’ reasoning was not subject 
to the will of Parliament, but to that of the King. Wales 
was not attached to the realm of English until a distinct 
act of Parliament (27 Hen. VIII), provided for its amal- 
gamation with England. Could anyone show any such act 
of amalgamation for the colonies in America?™® So, too, 
with Scotland: between the accession of the Scotch King 
James to the English throne and the Act of Union a hun- 
dred years elapsed during which the Parliament had no 
authority in Scotland. Ireland was another case in point ; 
for although it was first conquered by Henry II, and at 
that time annexed to the realm of England, yet it was not 
until the passage of Poynings Law under Henry VII that 
Ireland was subjected to the authority of the English Par- 
liament. Where was the Poynings Law for America??? 
Surely if such a condition of independence of Parliament 
was accorded the conquered nations of Wales and Ireland, 
it ought to be granted to unconquered America.8° “The 
fact is that Massachusetts is a realm, and New York is a 
realm,” and “The King of Great Britain is the sovereign 
of all these realms.” 8? 

As to the nature of the kingship to which the colonial 
statesman seemed to accord so much power and authority, 


7 Novanglus, IV. 134, Cf. J. F. Tout, Edward the First, (1893) p. 119. 
7 Novanglus, IV. 156. 

80 Novanglus, IV. 158. 

§1 Novanglus, IV. 123; Cf. J. J. Zubly, Stamp Act Sermon, p. 6-7. 


JOHN ADAMS BRITANNIC STATESMAN 107 


the attack by “Novanglus” upon a pamphlet by the loyalist 
Galloway 8? clears up this point. Back among his favor- 
ites, he tells us that Lord Coke had made a distinction be- 
tween allegiance due the King in his personal and in his 
political capacity. Allegiance was held in a famous case to 
be due to the “natural person of the King,’8? and hence 
John Adams built up the distinction between allegiance 
due to the crown and allegiance due to the realm of Eng- 
land. With Coke he agreed that the King “‘in his political 
capacity did rule the divers nations and kingdoms of his 
empire,” but had “to govern them by their distinct laws,” , 
thus preserving the separate identity of the component na- 
tions in the empire-commonwealth.84 Perhaps in law 
there is much to be said on both sides of such an historical 
argument, but in that we are not so much interested here. 
It makes little difference now whether John Adams was 
right or wrong. What matters is that he could think in 
terms of a commonwealth of nations. 

The “Novanglus” series, like the crown’s case against 
Hancock in the case of the sloop Liberty, came to an ab- 
rupt end with the battle at Lexington. With that event 
the story of John Adams as a Britannic statesman must 
cease. The last number of “Novanglus” “was prevented 
from impression by the commencement of hostilities, and 
Mr. Gill gave it to Judge Cushing, who now has the manu- 
script.”8° The Pennsylvania Gazette for May 10, but 
three weeks after Lexington, announces the arrival of 
John Adams among the Massachusetts delegates at Phila- 
delphia for the second Continental Congress. If, as his 
adversary had contended, “there is no possible medium 
between absolute independence and subjection to the 
authority of Parliament,” if British statesmen would not 
understand the idea which for ten years he and his fellows 
had been trying to work out, then the colonists were going 


524 Candid Examination of the Mutual Claims of Great Britain and the 
Colonies, (New York: 1774). 


837 Coke Rep. 19. Cf. Blankard v. Galdy; 2 Salk. 411. 
84 Novanglus, IV. 145. 
8 Diary, II. 405. 


108 POLITICAL IDEAS AMERICAN REVOLUTION 


to be “absolutely independent.’’8* He believed to the end 
that “an absolute independence on Parliament in all in- 
ternal concerns and taxation is very compatible with abso- 
lute dependence in all cases of external commerce.” But 
if the British would not try to work out any formula along 
this line, then the conversation could only be continued 
when as first American Minister at the Court of St. James, 
he was able to assure George III, “I have no attachment 
but for my own country.’ §7 

Any review of John Adams’ political writings would be 
incomplete without mention of the sources of his ideas. 
Especially is this true when one assigns him a position in 
Britannic history, since English thinkers supplied him so 
largely with the inspiration and information upon which 
he built his own ideas. The sound of “Sydney, Harring- 
ton and Locke” re-echo in the thoughts of any reader long 
after he has put a volume of John Adams’ works aside. 
These with Hobbes, Milton, Hume, Nedham, Bacon, and 
the beloved legal lights like Coke, make him even more 
truly a product of the British Empire. Who seeks the 
influence of French or continental thought on the Ameri- 
can Revolution must look elsewhere for his evidence. 
Needless to say, there is mention of Rousseau and Montes- 
quieu, as there is of Grotius, Puffendorf, and Machiavelli, 
but we have his own word for it as well as the evidence 
of his writings that it is his English intellectual inheritance ~ 
of which he is most proud.8§ 

Although it may be true that John Adams belongs to 
that reactionary period of American political thought to 
which history seems to have consigned him, he has never- 
theless a claim to a position among the pioneers of a new 
class of Britannic thinkers, who are in the twentieth cen- 
tury still at work on the same task. 


86 Novanglus, IV. 130. 

87 Life, I. 419. 

etapa ts III. 22, 462; Novanglus, IV. 194; VI. 492. Cf. Dunning, Hist. 

Pol. Theories from Luther to Montesquieu, p. 254n. Cf. Theodore Dwight. 

Popianeicn and His mgd oat upon American Political Institutions and 
Political Thought in the Pol. Sct. Quar., -44. Harrington it was from 
whom Adams got his “commonwealth is tae empire of laws, and not of 
men.” James Harrington, Oceana (Morley Ed.; Lond. 1887), pp. 25-9. 


CHAPTER VI 


SOME THINGS WHICH PARLIAMENT 
COULD NOT DO 


Lest it be inferred from the preceding chapters that 
after all the American Revolution was little more than an 
accident, there now appears in our story the figure of one 
whose crashing sentences shook Americans from their 
belief that their problems might be solved within the Brit- 
ish Empire. It is perhaps a little presumptuous to imagine 
that anything new can be said of Thomas Paine, for later 
investigation has now rescued him from the obliquity to 
which the orthodox conscience condemned him. At least 
he has been given the place in American history? and in 
the history of American politics to which he is entitled.* 
That as a writer he helped to cut the Gordian knot of the 
British imperial problem for thousands of Americans is 
now a fairly well established fact.4 But there is still room 
for doubt as to whether he has been given that place in po- 
litical science in which he belongs. One discovers on exam- 
ining a standard American treatise on political science 
that the index contains no mention of the name of Thomas 
Paine,® yet a recent source book on political philosophy 
classes with Aristotle and Plato, Hobbes and Locke, 
Montesquieu and Rousseau, the name of Paine, who is, 
incidentally, the only writer in that volume who can in any 
way pretend to be an American.® 

A close student of Paine’s political theories has assured 


1See the preface to the Life of Thomas Paine (1892) by his chief res- 
cuer, M. D. Conway. 


2. Channing, History of the United States, III. 189-90. 
3C. E. Merriam, History of American Political Theories, pp. 70-74. 


4Cf. J. B. McMaster, History of the People of the United States, I. 152-4; 
and R. Frothingham, Rise of the Republic, pp. 476-80 and notes, where 
this has been worked out. 


5Cf. e. g.. J. W. Garner. Introduction to Political Science, or J. W. 
Burgess, Political Science and Constitutional Law. 


6 F. W. Coker, Readings in Political Philosophy. 
[109] 


110 POLITICAL IDEAS AMERICAN REVOLUTION 


us that he cannot be classed as a great political thinker, 
that he was an agitator rather than a philosopher, and that 
everything he thought had been marked out before and 
better by others.7 Into that question it is none of our 
business to enter. But the eagerness of some writers to 
fit Paine’s thought into certain already defined categories, 
to pigeonhole his work intellectually, has perhaps led to 
the neglect of some phases of his thought which may be 
worth a good deal more consideration than the aspects of 
his thinking to which most time and paper seem to have 
been devoted. Paine’s contributions to the higher criti- 
cism of the Bible are not very important in this day of 
careful textual criticism and archeological research. And 
insofar as his theories of politics are merely copied from 
Locke or Rousseau, we have access to both of those writ- 
ers. But this is not all of Paine, and perhaps ultimately 
it may be recognized that these things were the least of 
Paine, as far as his position in the history of thought is 
concerned. The criticism which he passed upon Rous- 
seau ought long ago to have given the key to what he was 
trying to do. “We find,” says he, “in the writings of 
Rousseau and the Abbe Raynal a loveliness of sentiment 
in favor of liberty, that excites respect and elevates the 
human faculties; but having raised this animation they 
do not direct its operation, and leave the mind in love with 
an object without describing the means of possessing it.”§ 
The challenge instantly arises that Paine offer some 
thought of a practical nature. As to the validity of his 
answer, it is not our province to discuss, but the popularity 
of all his writings bear witness to their representative 
character in America, and with that we are concerned. 
Paine’s most sympathetic, if somewhat uncritical, 
biographer closes his work, after many years of study, by 
calling his subject the “Founder of the Republic of the 
World.”® Whatever claims Paine may have to such a 


™C. E. Merriam, Pol. Sci. Quar., XIV. 389, 402. 


8 The Rights of Man: (1791), in Conway’s Ed. of Paines Collected Works, 
II. 334. Citations unless otherwise noted are to this edition. 


® Conway closes his work thus: “Here then close my labors on the history 
and writings of the Great Commoner of mankind, founder of the republic 


THINGS PARLIAMENT COULD NOT DO 111 


title are based on two things: his doctrinaire efforts, which 
include most of his religious writings, and his practical 
contributions to the science of politics. The former do not 
fall within the sphere or scope of this work, but the latter 
are a part of our story. For Thomas Paine was an in- 
ternationalist ; not, it is true, exactly in the sense in which 
that term is used today. He was no acutely class con- 
scious proletarian, with a specific economic program for 
the amelioration of all human ills. He was an English 
Quaker who saw the leaven of liberty at work in America, 
and so he went to America. After very active participa- 
tion in the realization of American liberty, he saw the same 
leaven at work in France, and so he went to France and 
participated with equal activity in the liberation of that 
nation. Like many men of his day he had a great confi- 
dence in the power of abstract ideas, and the sense in 
which he was an internationalist is that he went from one 
country to another to spread and write about those ideas. 
It is, indeed, true that he often divided mankind into the 
oppressors and the oppressed, but he thought of them 
not in terms of economic “haves” and “have nots,” rather 
in terms of their condition or state of liberty, which in the 
last analysis depended upon the freeing of man from ig- 
norance and superstition rather than upon any scheme for 
more equal distribution of the products of industry. He 
lived in a day when the economic factors were only be- 
ginning to be recognized by social reformers, and he 
naturally placed little stress on them. Instead he had an 
almost unlimited confidence in the self-governing capacity 
of the great mass of the people, a thought which one 
usually associates rather with the period of Jeffersonian 
democracy. It is, however, a part of the whole Revolu- 
tionary theory of politics, which seems to have held that 
a political reform must precede every other and to regard . 
political liberty as a summum bonum itself. 

As to Paine’s representative character, the evidence is 
pretty convincing that he had that knack of expressing 
of the World, emancipator of the human mind and thought.” Works, IV. 


Xxiil. _This is certainly a revaluation of Paine and if true, makes him 
deserving of a good deal more attention than has been given him. 


112 POLITICAL IDEAS AMERICAN REVOLUTION 


what people in general were thinking better than most of 
his contemporaries. It is possible that a good deal of the 
talk about the influence of certain writers is a little mis- 
leading. Doubtless writers do influence, but isn’t it pos- 
sible that the nature of that influence lies less in the pres- 
entation of a brand new idea than in the fact that the 
writer is the mouthpiece of his day and time, and the more 
popular any given writer is, the more faithful reproducer 
he is? We have a current illustration of the point in the 
readiness of superficial writers to blame a certain Central 
European historian for leading the mentalities of his peo- 
ple astray. After all, did Treitschke really teach Germans 
the gospel of might? If the German mentality had not 
reached that thought anyway, is it likely that the efforts of 
a single historian could have effected it? Conceivably it 
might have been so, with that author one of a great num- 
ber. But is it not equally fair to translate such a vogue, 
when it exists, in terms of the readiness of people to read 
the writings in question? It is not the number or pro-v 
fundity of learned scholars that makes a country civilized 
so much as the enlightment of the mass of the people. 
Consequently the vogue or popularity of a writer may be 
a very convenient index to the thought of a people, even 
though scholars frown upon that writer. Treitschke was 
rather the spokesman than the instigator of Deutschtum. 
Similarly with Paine. Were we to believe some of our 
histories, it would seem that up to a certain point no one 
thought of independence in America, then suddenly a 
single pamphlet converted thousands to that idea. But 
may it not be that Paine’s oft-attested tremendous popu- 
larity in his own time is simply a register of the stage » 


. which the thought of America had reached? 


One of the chief difficulties which besets the path of 
the modern political thinker appears to be his inability to 
get above or beyond the state. Political scientists may 
disagree endlessly, but the one topic upon which there. 
seems to be any degree of unanimity is that their subject 
deals primarily with the state. One of Woodrow Wil- 
son’s principle works adopts that word as a title, and 


THINGS PARLIAMENT COULD NOT DO 113 


hardly a German book but has the word “Staat” on its 
front page in some combination or other. Thomas Paine, 
as a true child of the eighteenth century, finds his subject 
- not in the state, but in man. Belonging to that school of 
thought of which Locke is the classic English and Rous- 
seau the classic French example, he predicates the equality 
of men as his starting point. Both of his famous prede- 
cessors seem to have been willing that the idea of man 
collectively should come into the titles of their writings,1° 
but Paine selected for the title of one of his chief works 
what he seems to have considered the dominant note in the 
philosophy which he represents, and rightly or wrongly 
builds his edifice on the “Rights of Man.” His conception 
of man seems so fundamental to his whole thought that 
it would be only an incomplete picture which would omit 
it. The equality of man is based upon what he calls “the 
unity of man,” by which he means “that men are all of one 
degree.”11_ He would have this equality understood 
spiritually. It was as manifestly absurd to Paine as it is 
today, to say all men are equal and then to think of man 
in physical terms.12> Neither was he thinking in terms of 
any “economic man.”’!% He pointed out that the only 
possible basis for the equality of men was the creation of 
man in the likeness and image of his creator.14 One is 
tempted to think that of all politica] thinkers Paine is one 
of a very few who could make a remark like that and not 
raise against himself the charge of superstition. Ordi- 
narily such language tempts the historian of politics to 
hand his subject over to the theologian and be done with 
him. But the theologians have lost any claim they may 


Locke, Two Treatises on Government and Rousseau, Le Contrat Social. 

11 Webster’s definition of ‘‘degree’”’ is “frank or station in life.” 

#2 “Tn a state of nature, all men are equal in rights, but they are not 
all equal in powers, the weak cannot defend themselves seers the strong.” 
Dissertation on the First Principles of Government, III. 


13“That Property will ever be unequal is certain: mean es! superiority 
of talents, dexterity of management, extreme frugality, fortunate oppor- 
tunities, or the opposite, or the means of those things, will ever produce 
that effect without having Feeo nee Me the harsh ill sounding names of 
avarice and oppression.” Ibid., III. 


14 Rights of Man, Paine’s Works, ie cen 


114 POLITICAL IDEAS AMERICAN REVOLUTION 


conceivably have had to Paine, for when he was first 
handed over to them they made short work of him. Per- 
haps the stone which the theologians have rejected may 
yet become the corner of another temple. 

It is rather difficult as yet to say whether there is any 
distinctively American theory of history or politics. But 
if Paine’s works are not sufficiently consistent to make 
clear to us what it is, they certainly aid us materially in 
. saying what it is not, and that is something. John Dewey’s 
chapter on the Germanic philosophy of history leaves one 
under the impression that the German God was the state ;1> 
Kuno Francke!® admits it, and Friedrich Meinecke!? al- 
leges it. Be this as it may, it is now writ large in letters 
that all may read that the German God was something 
other than love. Thomas Paine’s doctrine differed very 
widely from the deification of the state with which the 
world is now familiar. His emphasis was not upon the 
nature of the state but upon the nature of man; he was 
not interested in the living state, but he was interested in 
living man; he did not endow the state with a metaphysical 
nature, but he did try to understand the metphysical aspect 
of man.1® Man, to whom in Paine’s thought no higher 


% Dewey epitomizes the Hegelian idea thus: “The march of God in 
history is the cause of the existence of states; their foundation is the 
power of reason realizing itself as will. Every state, whatever it be, 
participates in the divine essence; the state is not the work of human 
art; only reason could produce it. The State is God on Earth.” German 
Philosophy and Politics, p. 111. 

16 “To the German it [the state] is a spiritual collective personality lead- 
ing a life of its own, beyond and above the life of individuals, and its 
aim is not the protection of the happiness of individuals, but their elevation 
to a nobler type of manhood and their training for achievement in all the 
higher concerns of life—in popular education, in scientific inquiry, in 
artistic culture, in communal and industrial education.” A German-Ameri- 
can’s Confession of Faith, pp. 26. 


17“Tt was Ranke who taught us to honor truth and regard states as 
living personalities, animated with vital impulses and desire for power; 
they are all proud, covetous of honor and egotistical, but no one of them 
is like the other.’ Deutschland und der Weltkreig, (tr.) p. 577. 


18 The verification of this cannot be ascertained by mere hunting up of 
foot note references. The whole of the first part of the Rights of Man 
as well as Common Sense are illuminating; but one should see also the 
later works wherein, this thought seems to be mature. While perhaps it 
may not be correct to go as far_as Paine’s admiring biographer and call 
him “the spiritual successor of George Fox,” yet it is apparent that in 
thinking of man Paine was frequently in the realm of “the real as opposed 
to the phenomenal being” (Webster’s definition of metaphysics.) Cf. John 
Adams’ Dissertation, Etc., Works, III. 462-3. 


THINGS PARLIAMENT COULD NOT DO 115 


title could be given, man was the basis of that “society” 
wherein the compact was made to form a government. 
Men being equal only in the quasi-spiritua] sense of hav- 
ing equal rights, government was necessary to restrain the 
weaknesses of men to prevent them from encroaching on 
the rights of less powerful neighbors. The aggregate of 
men was “society,” “the nation,” “the people,” and a heavy 
line of demarcation was drawn between them and their 
tool, government. From this train of thought he could 
never lose sight of the fact that government was merely 
the instrument, the creature of society. This idea forms 
the groundwork for the concept of the “state” as a portion 
of society, which seems to be the sense in which English- 
men and Americans use that word. But under no circum- 
stances can it form the groundwork for the idea “Staat,” 
which seems to have demonstrated itself as a thing existing 
of and for itself.19 

The distinction between “society” and “government” is, 
then, the opening thought of that famous “Common 
Sense,” which even the hostile critic was compelled to 
praise as “speaking the language the American colonists 
had felt, but had not thought, its popularity, terrible in 
its consequences to the parent country, was unexampled in 
the history of the press.”?° The distinction upon which 
the modern political scientist insists is between the state 
and the government. Paine’s distinction was between 
society and government. That this is no matter of words 
can be seen from a simple illustration: a Louis XIV might 
have called himself the state, but even he would hardly 
be so egotistical as to confuse himself with society. Of 
course, we have no Louis XIV today, but in the Teutonic 
Staat idolator we have a confusion of state and govern- 


#2The contrast with the German thought is not brought out for the 
purpose of stating what the German thought is on this point. Perhaps 
there is no dominant ‘‘German thought,’’ in the same sense that there is 
no “‘ average man.” Rather is the analysis in the nature of a convenient 
fiction which clarifies Paine’s thought by contrast. On the interesting 
subject of the later stages of this, attention is directed to Ralph Barton 
Perry’s thoughtful discussion of The Present Conflict of Ideals, p. 263 
passim; although distinctly a war-book this volume brings out vividly the 
opposing points of view. 


” Cheetham, Life of Paine (1819), quoted by Conway, Life, Preface. 


116 POLITICAL IDEAS AMERICAN REVOLUTION 


ment which is probably even less scientific than that of 
Louis and has demonstrated itself as more dangerous to 
society. That is wherein Paine’s thought seems to be a 
contribution which political science has overlooked ; begin- 
ning with society he does not erect an idol which ulti- 
mately shows itself the enemy of society; he would have 
society instruct an agent, which must obey the mandate 
of its principal. In other words, instead of constructing av 
Frankenstein monster which destroys it, society gives or- 
ders to its servant. It is quite immaterial to this analysis 
whether the modern, and especially the German theory of 
the state is as it has been presented here or whether it is 
something else. If the contrast brings out the thought 
of Paine it serves the purpose for which it was introduced. 

Paine’s concept appears and reappears constantly 
throughout his works, particularly in his doctrine of con- 
stitutional law. In commenting on this distinction be- 
tween society and government, he observes: “How often 
is the natural propensity of society disturbed or destroyed 
by the operations of government; when the latter, instead 
of being engrafted on the principles of the former, as- 
sumes to exist for itself, and acts by partialities of favor 
and oppression, and it becomes the cause of the mischiefs 
it ought to prevent.’2! Thus government occupies not ~ 
only a subordinate position, but it holds that position only 
during good behavior. This was the philosophy of the 
Revolutionary period, in which Jefferson could talk about 
watering the tree of liberty with the blood of patriots and 
tyrants. But Paine drew from this the principle that “the 
strength and permanent security of a government is in 
proportion to the number of people supporting it.”?2 In 


\ other words, government is a thing which depends upon 


the consent of the governed; governments are not un- 
limited and above law, but are limited by instructions from 


their principals, by the orders from their masters. 


Paine’s doctrine of the nature of a constitution and con- 
stitutional law is that they were the instructions which the 


21 Rights of Man, Paine’s Works, II. 409. 
2 First Principles of Government, III. 267. 


THINGS PARLIAMENT COULD NOT DO 117 


principal gave its agent, the orders which the master gave 
his servant. “A constitution,” he says, “is a thing ante- 
cedent to government and a government is only the crea- 
ture of the constitution.” On this point the Revolutionary 
thought split with the traditional English conception of a 
constitution. “From a want of understanding the differ- 
ence between a constitution and a government, Dr. John- 
son and all the writers of his description have always be- 
wildered themselves. They could not but perceive that 
there must necessarily be a controlling power existing 
somewhere, and they placed this in the discretion of the 
persons exercising the government, instead of in the con- 
stitution formed by a nation. The laws which are enacted 
by governments control men only as individuals, but the 
nation, through its constitution, controls the whole gov- 
ernment.”2* Here is the meeting place of the eighteenth 
century philosophy and the American doctrine of consti- 
tutional law which subordinates the government to the 
higher law, the constitution. The American doctrine is 
the logical resultant of the philosophy of the Revolution. 
If men are all equal in the sense that they have equal 
rights, if they form governments to protect those rights, 
then there must be somewhere a fundamental set of rules 
which delineates those rights and lays down the terms on 
which the protection is granted. If the protecting agent 
destroys what he is created to protect, then the process is 
simple enough; society simply appoints another agent who 
will observe its instructions and abide by the fundamental 


law. From this assumption develops normally the Ameri- ~' 


can doctrine that a law against the constitution is void, 
and no government can put it into effect, because as no 
fountain can rise above its source, no government can be 
above the law of the constitution. 

Paine’s discussion with Condorcet illustrates how fun- 
damental he believed this doctrine was. The latter asked 
him a number of questions on the construction of govern- 
ment and administration. Paine answered by leading 
Condorcet back to the fundamental principle which has 


23 Rights of Man, Paine’s Works, II. 436. 


118 POLITICAL IDEAS AMERICAN REVOLUTION 


been outlined above. In answer to the question as to how 
the balance should be preserved between the legislative 
and executive branches of the government and in answer 
to the question how a unicameral legislature can be pre- 
vented from running away with itself, he gave virtually 
the same answer: “A constitution, in defining the limits 
of power, together with the principles which the legisla- 
ture is bound to obey, has already provided a most power- 
ful and trustworthy check upon any abuses of power.” ?4 
This kind of political thinking, which resulted in the theory 
that the sovereign will of the people was to be found in 
and expressed through the constitution, represents the 
whole line of development from the revolutionary thought 
of the seventeenth century through the revolutionary 
thought of the eighteenth down to the American doctrine 
of the supremacy of the law of the constitution. For 
Americans this law which is above the government has 
become such a real thing that it is enforceable in the 
courts, and the American does not hesitate to appeal to 
that law over the head of the legislature which has enacted 
something that he conceives to be contrary to it. Let us 
now observe the emergence of that idea in the era of the 
American Revolution. 

When an Englishman of the time of Burke, or even in 
our own day, said that such and such an act of Parliament 
was “unconstitutional,’ he merely meant that in his 
opinion the act was opposed to the spirit of the British 
constitution, but that it was thereby either void or a 
breach of a higher law would not have entered his head. 
On the other hand, when John Adams or James Wilson 
said that an act of Parliament was unconstitutional they 
meant something entirely different. The supremacy of 
Parliament was, as we have observed, a thought which 
obsessed Westminster at this time. As Parliament was 
the body which made British constitutional law, naturally 
its members could not conceive of a constitution which 
was contrary to their will. But in America another idea 
appeared. What did the colonists mean by their constant 


24 Four Questions on Government, II. 238, 239, 241. 


THINGS PARLIAMENT COULD NOT DO 119 


harping on the point that they were entitled to the rights 
and liberties of Englishmen? Did they mean that they 
enjoyed the benefits and owed the duties which British 
constitutional law secured for the British people? Did 
they really mean that they carried with them upon emigra- 
tion from England all of the laws of England, as being 
bound by them and entitled to their protection wherever 
they should settle? Manifestly they did not, for as 
Franklin very properly pointed out “they left the realm 
in order to avoid the inconveniences and hardships they 
were under, where some of those laws were enforced, 
particularly the ecclesiastical laws for the payment of 
tithes and others.’”’25 If they had carried those laws with 
them they might just as well have stayed at home. What 
then was the nature of the laws which secured to them the 
rights which they claimed as Englishmen, laws which they 
claimed to have brought over with them, laws which dur- 
ing the pre-Revolutionary period they so frequently and 
eloquently invoked in justification of their position, and 
where were those laws to be found? The answer is found 
in such documents as the letter of the House of Represen- 
tatives of Massachusetts Bay in January of 1768 to Lord 
Shelburne, in which it solemnly warned that official that 
neither the supreme legislature nor the supreme executive 
could alter the fundamental rules of the Constitution.?® 

In the next month the doctrine is repeated: “This 
House is at all times ready to recognize his Majesty’s 
high court of Parliament as the supreme legislative power 
over the whole empire, its superintending power in ail 
cases consistent with the fundamental rules of the consti- 
tution.”?7 If Parliament was sovereign, who were the 
members of the Massachusetts legislature that they could 
lay down rules under which that sovereignty was to be 
exercised? The answer is that they were Americans and 


2 Works, (Bigelow Ed.), IV. 300. 


26 Reprinted in The True Sentiments of America, (London: 1768), p. 15. 
This is an interesting and valuable collection of various documents in the 
controversy from 1765-68. 


*" True Sentiments, etc., p. 22. 


120 POLITICAL IDEAS AMERICAN REVOLUTION 


that Americans were at that time putting into operation 
the idea that there is no government above the law. Such 
a doctrine was all but unthinkable in England, for had 
not Blackstone declared that “no court has power to de- 
feat the intent of the legislature” ?28 In Massachusetts at 
this time the word “court” was used in two senses. There 
was the General Court (legislative), and the Executive 
Courts (judicial). The former, which Blackstone did not 
have in view, now .undertook deliberately to do what 
Blackstone said could not be done. Samuel Adams, author 
of the above-quoted letters of the House of Representa- 
tives of Massachusetts, wrote a series of letters in behalf 
of that body to various members of the ministry and other 
prominent English statesmen in which he reiterates time 
and again that it is the American sense of the word “con- 
stitution” that “the constitution is fixed; it is from thence 
that the supreme legislative as well as the supreme execu- 
tive derives its authority. Neither then, can break 
through the fundamental rules without destroying their 
own foundation.’29 He had three years earlier made 
clear what he meant by appealing to what he called the 
rights of Englishmen to which the colonists were entitled. 
He meant the fundamental principles of that British con- 
stitution to which he was now appealing over the heads 
of the government.®° If it be inquired where those prin- 
ciples were to be found, Samuel Adams is quite represen- 
tative of his age in discovering them not only in the great 
monuments of English constitutional law, but in what that 
generation knew as “natural law,’ of which they seemed 
to conceive the constitution as the expression. 

But was such a law really law in the sense that it was 
enforceable in the courts? We have observed that there 
was. another kind of courts in Massachusetts, the Execu- 
tice Courts (judicial) ,32 and certainly they were the courts 

23 BI. Com. Intr. 91, (Chitty Ed.). 


229To Rockingham, 22 Jan., 1768: Mass. State Papers, p. 142. 
8 To John Smith, 19 Dec., 1765: Samuel Adams Works, (Cushing Ed), 
46. 


a 


To Conway: Feb. 13, 1786: Almon, Prior Documents, pp. 181, 182. 


%2 John Adams, Supra; and Hutchinson, History of Mass., III. 505. Cf. 
also Joshiah Quincy, Memoir of Josiah Quincy Jr., D. 68. 


THINGS PARLIAMENT COULD NOT DO 121 


which Blackstone had in view. Yet we have seen that 
Otis and John Adams had demanded that even these courts 
question the validity of an act of Parliament which was 
contrary to the constitution.23 Apparently in the thought 
of these colonials, the law of nature was a thing that could 
be “adopted into the Constitution”®* or “engrafted into 
the British Constitution,”?° and having thus been made a 
part of English law by the great constitutional documents, 
Magna Carta and the like, it was so very real that the col- 
onists might appeal to it over the head of Parliament.?® 
Although it probably would not be correct to say that all 
the Americans of this time were looking forward to the 
time when a court was to decide upon the constitutionality 
of an act, certainly many Americans who were not great 
lawyers were thinking in terms which formed the back- 
ground of the idea that governments existed under the law 
of the constitution. For instance, Samuel Adams does 
not enunciate the doctrine of judicial control with the 
clearness with which historians have pointed out that Otis 
and John Adams foreshadowed that idea,?7 but he did say, 
“When a question arises on public administration, the na- 
tion will judge and determine it in conformity with its 
political constitution.” °8 Samuel Adams, like Paine, we 
may perhaps regard from his personal popularity as some- 
what more representative of the mass of the people than 
the more intellectual men and profound thinkers of the 
type of John Adams or James Wilson. 


33 Otis in his speech on the Writs of Assistance. See J. Adams Works, 
II. 522, 525; John Adams on the Stamp Act, supra. 


*% House of Reps. of Mass. to Dennys DeBerdt, 12 Jan., 1768; S. Adams 
Works, I. 135. 

% House of Representatives of Mass. to Shelburne, 15 Jan., 1768, Mass. 
State Papers, p 

a “Tt is the glory of the British Prince and the happiness of all his sub- 
jects that their constitution hath its foundation in the immutable laws 
of nature; and as the supreme legislature, as well as the supreme executive 
derives its authority from that constitution, it should seem that no laws 
can be made or executed which are repugnant to any essential law of 
nature.’”” House of Reps. of Mass. to Conway, Feb. 13, 1768, Almon, 
Prior eee: p. 181-2. 


7 E. g., A. C. McLaughlin in his chapter on the “Power of a Court to 
declare os law unconstitutional” in his The Courts. the Constitution, and 
Parties’, pp. 75-94. 


%8 House of Reps. of Mass. to Camden, 29 Jan., 1768, Almon, Pvrior 
Documents, p. 187. 


122 POLITICAL IDEAS AMERICAN REVOLUTION 


Moreover, this kind of talk went on not merely among 
the radicals. Even such an advocate of parliamentary 
supremacy as Daniel Dulany believed that the right of 
Parliament to legislate for the colonies was qualified 
by the constitutional compact between the colonies and 
Great Britain. He admitted that Parliament was the 
superior legislature and that the colonial assemblies were 
inferior legislatures, but he averred that there were cer- 
tain matters reserved to the colonies into which the au- 
thority of Parliament could not properly interpose “for 
by the power vested in the inferior is the superior lim- 
ited.’’89 Another and even more critical commentator 
on British constitutional law, who also acknowledges 
the supremacy of Parliament, observed that that body 
was “grasping at a power altogether foreign and incon- 
sistent with the principles of their own Constitution,” in 
arrogating to themselves the right to tax the colonies.*° 
Even the prospective Tory, Joseph Galloway, who advo- 
cated the theory of Parliamentary supremacy to the last, 
inquired pertinently “what are the modifications” of this 
supremacy ?4! When Blackstone had said that Parlia- . 
ment was supreme, he meant exactly that, and he pro- 
ceeded to illustrate it by saying that even if Parliament 
passed an act making a man judge in his own case, he 
knew of no power that could defeat the intent of Parlia- 
ment. Certainly it would be difficult to put the British 
theory any more clearly. But apparently Americans did 
know of such a power, and particularly objected to Par- 
liament acting as judge in its own case. Governor Pitkin 
of Connecticut instructed the colonial agent of that prov- 
ince ‘“‘on the sense of his people, admitting, therefore, that 
there is a supreme power in the British Parliament to reg- 
ulate and direct the general affairs of the empire, it can- 
not surely be inferred from thence, that the British Parlia- 
ment can by any act agreeable to the Constitution, deprive 
the subject of the essential privileges of it. The suppo- 


*® Dulany, Considerations, etc., p. 16. 


* Considerations on the Rights of the Colonies to the Privileges of British 
Subjects, (New York: 1766), p. 21. 


“1 Galloway, Candid Examination, etc., p. 6. . 


THINGS PARLIAMENT COULD NOT DO 123 


sition is absurd, it involves a contradiction,’4? i.e., that a 
creature of the constitution can change the constitution. 
It has already been observed that Richard Bland suggested 
a similar thought in his statement that “great as are the 
powers of Parliament, yet it cannot constitutionally de- 
prive the people of their civil rights, which are founded on 
compact, without their consent.’’4% 

We now begin to see that an American of Burke’s day 
did not mean the same thing as an Englishman when he 
called a law “unconstitutional.” In England the Vinerian 
professors from Sir William Blackstone to Mr. A. V. 
Dicey have taught that Parliament is absolutely sover- 
eign.44 From this preachment it follows that what Par- 
liament wills is law, and the highest law cognizable by the 
English courts. Hence in the period we have elected to 
study it was a settled rule in England that no judicial court 
could decide that an act of Parliament was contrary to 
any superior rule of binding power; the Revolution of 
1688 had fixed the supremacy of Parliament. But the 
legal historian would have us understand that this had not 
always been so, and there does indeed seem to be ground 
for the assertion that before the revolution of 1688, in the 
century in which the English common law was being 
translated from England to America, Coke had tried to 
establish the doctrine that “the common law will control 
the acts of Parliament and some times adjudge them to be 
utterly void.”45 This doctrine, planted in the new soil, 


# Mass. Hist. Soc. Coll., 5th ser., IX. 280. 
43 Bland, Enquiry, etc., p. 20. 


“The former rules that “there is and must be in every state a supreme 
irresistible, absolute and uncontrolled authority, in which the jura summi 
imperu, or rights of sovereignty reside.” 4 Bl. Com., 48-9; and further 
“That this supreme power is by the constitution of Great Britain vested 
in the King, Lords and Commons.’”’ 4 Bl. Com. 50-1. The latter lays 
down “Parliament means, in the mouth of the lawyer, the King, the House 
of Lords and the House of Commons. The principle of Parliamentary 
sovereignty means neither more nor less than this, that Parliament thus 
defined has, under the English constitution the right to make or unmake 
any law whatever, and furthermore, that no person or body is recognized 
by the law of England as having a right to override or set aside the 
legislation of Parliament.” ” A. V. Dicey, Introduction to the Study of the 
Law of the Constitution.”” (8th Ed. 1915), p. 38. 


* Coke’s Doctrine is in Dr. Bonham’s Case, 8 Rep. 118a. Brinton Coxe 
in his Judiciary and Unconstitutional Legislation, (1892), has called atten- 
tion to this matter and blazed the way for other modern studies. 


124 POLITICAL IDEAS AMERICAN REVOLUTION 


seems to have grown strangely away from the law of Eng- 
land. It is interesting to reflect that the legal education —- 
of the lawyers in America prior to the Revolution was 
gained not from the celebrated “Commentaries” of Black- 
stone, which afterward became the nucleus of a lawyer’s 
training. The books available in the colonies were not 
numerous ; the volumes of colonial reports which we have 
today, scant and meagre at best, were most of them not 
printed until years after the cases were decided, and Black- 
stone’s work did not appear in print until the Stamp Act 
year. What then did they study? The answer seems to 
be that in a very large degree they got what they knew 
from the writings of that celebrated Sir Edward Coke, 
who did not scruple to inform James, of Divine Right 
fame, that even the King was under the law, from Coke’s 
Reports, Coke’s Institutes, Coke on Littleton. The doc- 
trine of Parliamentary supremacy was not so firmly fixed 
in the day when Coke wrote as it later came to be, 
and Coke believed he had ample precedent for imposing 
the limitations of law upon both King and Parliament. 
Moreover, American lawyers had read their Vattel as well 
as their Coke, and had not Vattel said, “It is from the 
Constitution that those legislators derive their power, how 
then can they change it without destroying the foundation 
of their own authority?’’?4° From these authorities it was 
an easy step to the pronouncement of Otis: “An act 
against the Constitution is void.’’4* 

It seems now to be fairly well established by ‘Me re- 
search of numerous scholars that the American doctrine 
of judicial supremacy,*8 far from being a figment of John 
Marshall’s imagination, is one of the earliest contributions 
of Anglo-American thought in the field of political science. 


46 Vattel, oe of Nations, (Chitty ed.), p. 11; this matter has been amply 
worked out by A. C. McLaughlin, Courts, Constitution and Parties, (1912), 


pp. 63 ff. 
47 John Adams, Works, II. 522-25. 


48 This expression is the name given this doctrine by one of the latest 
and most comprehensive reviews of the whole American history of the soe 
trine; it supersedes now the earlier works of Brinton Coxe and J. 
Thayer, and so amply covers the field that to say anything again on ee 
subject would indeed be in the nature of a twice-told tale. See C. G. 
Haines, The American Doctrine of Judicial Supremacy (1914). 





CHARLES PRATT, First BARON CAMDEN 


From an Engraving of a portrait by Reynolds, in the collection of the 
Law School at the University of Pennsylvania 





* 





' 

oui 

‘ a? 
y 
£ 


THINGS PARLIAMENT COULD NOT DO 125 


Finding its origin in that period of English history before 
the judicial and legislative functions of the High Court 
of Parliament were clearly separated, in the period when 
Jaw was “declared rather than made,” it was reinforced by 
the “natural rights” philosophy of the seventeenth and 
eighteenth centuries and emerged in the period under our 
observation as the doctrine of constitutional law of which 
Paine and Samuel Adams are such clear exponents.*9 I 
take that doctrine to be that in every state there exists a 
body of fundamental law, which is sociéty’s mandate and 
instruction to its agent, government; that that” government 
has no tight to violate or exceed these instructions, and 
that if it does so, its act is void. This is the doctrine 
which the American colonial thinkers, statesmen, and poli- 
ticians were, as has been illustrated above, constantly stat- 
ing as true, but any very effective means of putting it into 
practice was lacking. As soon as America became free 
from the English doctrine of Parliamentary supremacy, 
the doctrine of the supremacy of the fundamental law 
found immediate expression in that series of cases at the 
end of the eighteenth century in which the courts of the 
new nation took upon themselves the task of securing the 
dominance of constitutional over statutory law, thus en- 
forcing the will of society rather than the will of govern- 
ment. It has been amply and ably demonstrated that the 
famous case of Marbury vs. Madison, which fixed the 
power of the courts to declare a law unconstitutional in 
the American political system, was not the introduction of 
a new legal principle, but rather the culmination of a whole 
series of decisions which began to find place in the books 
almost as soon as the Declaration of Independence cut 
America loose from the doctrine of the supremacy of 
Parliament.°° 


47°C. H. McIlwain in The High Court of Parliament and its Supremacy 
(1910), traced the English constitutional history of this doctrine and left 
little to be desired in the way of information to illustrate what is sum- 
marized above. 


*0 The tale of these cases has been rehearsed by Brinton Coxe, McLaughlin, 
and Haines, supra, so that any review that might be made here would 
be quite superfluous, and the merest repetition of what has already been 
established. It ought not, however, to, be overlooked that much of the 
ground breaking in this field was done in a very able dissertation by 
Horace Gray, which rather unfortunately has been somewhat buried as 

Appendix I to the volume of Quincey’s (Mass.) Colonial Reports. 


126 POLITICAL IDEAS AMERICAN REVOLUTION 


One of these cases peculiarly deserves our attention, as 


in it James Iredell appeared as counsel and so convinced — 


the court that Justice Ashe ruled, “it was clear that no act — 


of legislature could by any means repeal or alter the con- 
stitution, because if they could do this, they would at the 
same instant destroy their own existence as a legislature, 
and dissolve the government thereby established.” Hav- 


ing secured this decision, Iredell then proceeded to explain 


to the people of his state that in the formation of a con- 


_ EBs 


—" 


stitution, the people had deliberately rejected the idea of © 


legislative sovereignty or supremacy and had thereby pro- 
vided for the defense of the minority against the whims 
of “a fluctuating majority.” Law was above the ma- 
jority. There was no doubt in his mind that the legisla- 
ture was a “creature of the Constitution,” and that if that 
legislature undertook to pass an act inconsistent with the 
constitution, the redress must come from the courts, be- 
cause the constitution is law, and the courts are the bodies 
which administer law; naturally they must decide which 
of two conflicting laws, statute or constitution, is to pre- 
vail, and as the constitution is admittedly the superior, 
they must administer the limitations upon the power of 
the legislature.*4 


Constitutionally speaking, the American Revolution ¥ 


meant the rejection by America of what was and is the 


theory of the British constitution, The British Empire — 


has survived by doing in practice what the Americans 
asked Parliament to do openly in the period under obser- 
vation, that is, it has quietly dropped overboard the theory 
of Parliamentary sovereignty as far as the empire is con- 
cerned.°? The doctrine of Parliamentary supremacy was, 
as numerous historians have indicated,®* of comparatively 


51 Bayard V. Singleton, (1 Martin, N. C., 42: 1787), Iredell’s address 
“To the Public,’ in G. L. McRee, Life and Correspondence of James Ire- 
dell, (N. Y., 1858), II. 145-8, and 173-4. 


The accuracy of this statement may be questioned. I content myself 
with trying to establish that Americans in the period under observation were 


asking Great Britain to let that theory go by the board; the chapters supra on 


the “British Imperial Problem in the XVIIIth Century” and “The Com- 


monwealth of Nations’? suggest the type of work that can be done to 


prove the conclusion which I draw here. 
*3C, H. McIlwain, prominent among these, supra. 


mw 


THINGS PARLIAMENT COULD NOT DO 127 


late growth in English constitutional development, and 
the American Revolution demonstrated that it had no 
place at all in Britannic constitutional development. The 
statesmen at Westminster see that today; was there not 
one statesman at Westminster in the era of the Ameri- 
can Revolution who saw that the doctrine of Parliamen- 


tary sovereignty could not be maintained if the Empire | 


was to survive? One naturally thinks of Burke and Chat- 
ham and of their futile efforts to show Parliament that in 
the matter of colonial taxation they could not do every- 
thing and anything that they desired to do. Yet when all 
was said and done, both of those men were among the 
group who held that the British Parliament was an im- 
perial parliament. 

There was one Englishman, however, who had read his 
Locke, who understood his constitutional law, and who 
seems almost like a voice crying in the wilderness of 
parliamentary sovereignty and supremacy. He was 
~ Charles Pratt, first Baron Camden, Lord Chief Justice 
of the Common Pleas (1762-66) and Lord Chancellor of 
England (1766-70). He seems to have been singularly 
overlooked by posterity, and one cannot forbear express- 
ing the hope that when his life is written it will be written 
either by an American or by an Englishman who under- 
stands the American view.°4 To Americans, Camden 
must always be of peculiar interest. He introduced into 
English law the principle of the common law, that fifty 
years earlier Andrew Hamilton, of Philadelphia, had fixed 
in the structure of colonial law by the celebrated Zenger 
trial at New York.®> Camden it was whose decision in- 
validating the use of “general warrants” would have glad- 
dened the heart of James Otis, had the colonial courts had 
the courage to take a like stand in the matter of the writs 
of assistance.°® And it was Camden who released John 


54 McIlwain, into whose province this might have come, dismisses Camden 
in a footnote as the “last whisper of an old theory.” p. 309n. 

% The rule which was overthrown concerned the law of libel, permitting 
the judge to decide whether the publication complained of was in fact 
libellous. The new rule of Hamilton and Camden permitted the jury to 
decide whether the publication complained of was libellous, and took from 
the bench its power to curb the freedom of the press. 

56 See Hutchinson, History of Mass., III. 93-5. 


128 POLITICAL IDEAS AMERICAN REVOLUTION 


Wilkes on habeas corpus after that firebrand had been ar- 
rested for his No. XLV of the North Briton, an act which 
caused the solemn reporter of the Common Pleas so far 
to digress from his function as to note at the end of his 
report, “caused a loud huzza in Westminster Hall.’’5* 
Even old Dr. Johnson was obliged somewhat begrudg- 
ingly to admit the popularity of this idol of the Whigs.°® 

Camden’s maiden speech in the House of Lords was an 
attack on the unsportsmanlike Declaratory Act with which 
the Rockingham ministry accompanied its repeal of the 
obnoxious Stamp Act. It deserves careful consideration, 
and, indeed, it supplies the title for this chapter, that there 
are some things which Parliament cannot do. “My 
Lords,” he began, “he who disputes the authority of any 
supreme legislature, treads on very tender ground. In my 
opinion, the legislature has no right to make this law. 
The sovereign authority, the omnipotence of the legisla- 
ture, is a favorite doctrine, but there are some things 
which you cannot do. You cannot enact anything against 
divine law. You cannot take away any man’s private 
property without making him compensation. You have 


no right to condemn any man by bill of attainder without ‘ 


hearing him.”®® Of those things which Parliament can- 
not do, the first goes off into that question of natural, i. e. 
divine, law, which is a story in itself. But the last two 
are purely questions of human law, in which the speaker 
was trying to put a rule above Parliament. He went on 
to argue from the case of Wales, just as John Adams had 
done, and to discuss that analogy of the Channel Islands 
which, as we have pointed out, so clearly delineates the 
nature of the empire as a Commonwealth of Nations. 
But the doctrine this new peer brought into the “hospital 
of incurables”® in his first speech aroused the wrath of 
that ponderous body. One of its most important inmates, 


572 Wilson’s Reports, 166. 


58 Boswell’s Johnson: (G. B. Hill Ed.), II. 404. For anecdote as to his 
farsighted vision on the American question, vid. Josiah Quincy, Memoir 
of Josiah Quincy Jun., (Boston: 1825), pp. 269-70. 


59 Hansard, Parliamentary History, XVI. 161 ff. Feb. 10, 1766. 
° Chesterfield’s sobriquet for the House of Lords. 


THINGS PARLIAMENT COULD NOT DO 129 


the Lord Chancellor Northington, bestirred himself from 
the woolsack to rebuke the impertinence of the fledgling 
peer. With measured discourse he solemnly reiterated 
the old story about the summum imperium of Great Brit- 
‘ain and the sovereignty of Parliament in a manner insult- 
ing not only to Camden but to the American, Franklin, 
who was a listener below the bar. His Lordship assured 
his colleagues that “With great submission to the noble 
and learned lord [Camden], I believe that all except him- 
self will admit that every government can arbitrarily 
impose laws on all its subjects.”6! This was far, indeed, 
from Paine’s doctrine that the “subjects” are the masters 
of the “government.” But Northington gave evidence 
that he understood America and the Americans even less 
when he went on to make clear to the Lords that since 
America showed herself so refractory, Great Britain had 
only to withdraw her protection, “and then the little state 
of Genoa or San Marino may soon overrun them.” A 
body in which the Lord Chancellor himself could utter 
such stuff as this was no place for a constitutional lawyer 
like Camden to try to interpret the newly emerging Amer- 
ican contribution to political science, that government ex- 
ists for the people and under the law of the constitution, 
not above the people and the law. 

Camden’s second effort in behalf of America exhibited 
an understanding of American thought far in advance of 
most Englishmen of his day. Lord Campbell’s chief de- 
fect as a biographer of the Lord Chancellors lies in his ex- 
cessive Whig bias, but even he cannot understand what 
Camden, whom he ardently admired, was driving at in this 
speech. The part of Camden’s remarks which are such 
an enigma to Campbell refer to the Declaratory Act in 
which Parliament asserted its sovereignty and supremacy 
over the colonies in all cases whatsoever. Camden calls 
it a “bill, the very existence of which is illegal, absolutely 
illegal, contrary to the fundamental laws of nature, con- 
trary to the fundamental laws of this Constitution.’ ® 


1 Hansard, Parliamentary History, XVI. 177. 
@ John, Lord Campbell, Lives of the Lord Chancellors of England. 
* Hansard, Parliamentary History, XVI. 177 f£. 


130 POLITICAL IDEAS AMERICAN REVOLUTION — 


How a law which was enacted by the only body qualified 
to enact laws could at the same time be “‘illegal” was quite 
beyond the comprehension of the noble lords. Even the 
admiring Campbell throws up his hands at this point and 
acknowledges that it seems to him to exhibit false reason- 
ing and false taste. Says he, “I confess I do not under- 
stand the reasoning by which, admitting that the British 
Parliament had the supreme power to legislate for the 
colonies, a law passed’to lay a tax on them, though it may 
be unjust or impolitic, is a nullity.”®+ Neither could most 
of the peers of Camden’s day understand it; neither could 
Mansfield nor Blackstone. Yet Campbell’s confession 
gives the key to the situation. To an Englishman, an. 
“unconstitutional” law was merely “unjust” or “impoli- 
tic,’ while to an American it was a “nullity.” And this 
was not merely the technical talk of the lawyers, Otis and 
John Adams. Mansfield and Northington might have re- 
ceived some illumination had they been parishioners of 
Jonathan Mayhew of Boston, a preacher and patriot- 
politician, who occupies a prominent place in the pulpit of 
the American Revolution. Mayhew took it for granted 
that Magna Carta was a part of the British Constitution, 
“all acts contrary to which are said to be, ipso facto, null 
and void.”®> Not that an act contrary to the Constitu- 
tion was merely mischievous, as Northington would say, 
but that it was “ipso facto, null and void,” which is the 
language of Coke. But then, after all, Northington ad- 
mitted, ‘‘I seek for the liberty and the Constitution of this 


4 Campbell, Lives, Ch. cxlii, on Lord Camden. 


® Jonathan Mayhew, The Snare broken: A thanksgiving Discourse preach- 
ed on May 23, 1766. (Boston: 1766.) p. 12 (The Stamp Act Sermon) Ci. the 
language of James Wilson, ‘“‘That the act of the British Parliament for 
altering the charter and constitution of the colony of Massachusetts Bay 
and those for the impartial administration of justice in that colony for 
shutting the port of Boston, for quartering soldiers on the inhabitants of 
the colonies, are unconstitutional and void; and can confer no authority 
upon those who act under the colour of them.’”’ Speech to the Convention 
of the Province of Pennsylvania, January, 1775, Works, (Ed. 1804). III. 
258. In other words, an “unconstitutional” act was not merely an unwise 
law which would have to be put into effect anyway, but it was not law 
at all; it had neither existence nor power. Cf. also the Sullivan Draft of 
the non-Importation Agreement, before it was modified by the First Con- 
ier ae ae er Journal of the Continental Congress, (Ford Ed.), 1774, 
i G ; Paya 0) 


THINGS PARLIAMENT COULD NOT DO 131 


Kingdom no further back than the revolution [i.e., of 
1688],’’ and Coke lived before that day.6° Even Junius, 
whom no one could accuse of being a Tory, and who, spar- 
_ ing as he was in compliments of a favorable nature, yet 
admitted that Camden was a character “fertile in every 
great and good qualification,”®’ could not follow this doc- 
trine that “the authority of the British legislature is not 
supreme over the colonies in the same sense in which it is 
supreme over Great Britain.’’® 

For the rest, Camden’s disapproval of the whole min- 
isterial policy was and is well known, yet he was one of a 
minority which numbered also Burke and Chatham. He 
kept on calling insistently for the rescission of the Declara- 
tory Act, just because therein lay the crux of the whole 
question from a constitutional standpoint.®® It is most 
interesting to compare the letters which Samuel Adams 
wrote to Chatham and to Camden when in 1768 he was 
inditing those epistles which have been mentioned above. 
The letter to the former commends Chatham for the at- 
tention he has devoted to the American cause and ex- 
presses appreciation of that statesman’s efforts as a zeal- 
ous advocate of the colonial cause.“ But the letter to 
Camden commends him for the accuracy with which he 
has envisaged the constitutional question, for his “great 
knowledge of the Constitution and the law of nature, of 
the just extent of parliamentary authority and the rights 
of British subjects.”7!_ Camden had serious doubts about 
the sovereignty of Parliament, and that is primarily what 
it took to make what we are calling a Britannic, as con- 
trasted with a British statesman.*? 

°° Hansard, Parliamentary History, XVI. 161. 

% The Letters of Junius, (London 1786), Letter LIX. 


% Junius, Letter LXIX. 


© Hansard, Parliamentary History, XVIII. 164, and Ibid., XVIII. 208. 
72 Feb. 1768, Almon, Prior Documents, p. 187. 


7129 Jan. 1768, Almon, Prior Documents, pp. 173-4. In Virginia, R. H. 
Lee got up_a subscription of £96 10s. to have Camden’s portrait painted 
(by either Reynolds or Benjamin West), and have that portrait brought 
to Virginia to memorialize “the inestimable_benefit derived to British- 
America from your Lordship’s protection.”—J. C. Ballagh, Letters of R. H. 
Lee: (N. Y. 1912), I. 22-26, 38. 


7 Camden said he ‘‘would not enter the large field of discussion, or col- 
lateral reasonings, applicable to the abstruse and metaphysical distinctions 


132 POLITICAL IDEAS AMERICAN REVOLUTION 


The phase of the thought of the American Revolutionary 
period discussed in this chapter is certainly one of the 
most noteworthy aspects of the whole question. Discus- 
sions which rest with the compact theory and presume that 
no further digging need be done would seem to miss the 
whole point of the thought of that period. The analytical 
political scientist too often dissects the philosophy of the 
eighteenth century and reduces it to its elements, each of 
which goes into a pigeonhole, this one labelled “compact,” 
that one labelled “natural rights,” and so on. This pro- 
cess is somewhat like trying to understand human beings 
by the sole method of conducting a post-mortem. Doubt- 
less the post-mortem has its place, but it is apt to deal 
solely with flesh and bones and to miss completely the 
spirit, which is, after all, the important thing. As to 
whether the thinkers who have been here discussed did 
actually make what is known as a “contribution,” a good 
deal depends on what is meant by that word. It is very 
easy to say that such and such a man can or cannot be 
classed as a great thinker, but I know of no expression 
quite so totally devoid of meaning. A contribution is a 
thing given or granted in common with others. In this 
sense, the men discussed here each made a contribution. 
As to the originality of that contribution, in the sense of 
whether it was new with them or copied from an earlier 
age, there are few useful canons of criticism. But even 
if these canons were well known, clearly defined, and uni- 
versally accepted, it is questionable whether there is a 
great deal of value in ascertaining facts under them. 
There are indeed few fields of thought in which it is so 
true that the would-be contributor finds that his “contri- 
bution” has already been made by someone else, and al- 
most certainly by Aristotle, as it is in the field of politics. 
My point, therefore, is not that certain ideas were now 
uttered for the first time, rather that they were the ideas 
enunciated in the Revolutionary discussions. The era of 


necessary to the investigation of the omnipotence of parliament, but this he 
would venture to assert, that the natural law of mankind a nd the immu- 
table laws of justice were aoe in favor of the ‘Amencans? Hansard, 
Parliamentary History, XVIII. 164. 


THINGS PARLIAMENT COULD NOT DO 133 


the American Revolution was preéminently an era of put- 
ting theories and doctrines into practice. ~ 

It may perhaps be objected that there has been a con- 
fusion of Parliament with government in England. But 
we ought not to forget that it was Blackstone who placed 
the supreme power in Parliament, in King, Lords, and 
Commons. Moreover, we ought not to forget that when 
Charles II was welcomed back to England it was with the 
express understanding that the “government is and ought 
to be by King, Lords, and Commons.” If King, Lords, 
and Commons constitute Parliament and also constitute 
the government, drawing a distinction between the last 
two is not very useful for the purposes of this discussion. 
Objection, then, will probably not be made to the general 
conclusion which we draw from this chapter, that the 
Americans, in establishing the fact that there were some 
things which Parliament could not do, were establishing 
in part an idea of politics native with them, namely, that 
there was no government above the law. This conclusion 
involves two additional questions. If they limited Parlia- 
ment, what did they do about sovereignty, and what did 
they mean by law? To those questions we now devote 
ourselves. 


CHAPTER VII 
THE LEGAL THEORIES OF JAMES WILSON 


“Without detracting, therefore, from the real merits 
which abound in the imperial law, I hope I may have leave 
to assert that if an Englishman must be ignorant of either 
the one or the other, he had better be a stranger to the 
Roman than to English institutions.’”’ Such was the spirit 
in which Blackstone approached his task, not with the en- 
thusiasm of a narrow nationalism, but with the mild sug- 
gestion that that which is the fruit of English experience 
is of more immediate significance in dealing with English 
problems than the experience of Rome or Byzantium. 
This is the spirit in which the essay is made to call atten- 
tion to the legal theories of an American jurist who seems 
to epitomize the spirit of American legal institutions in 
the time when they were first emerging as distinct from 
the institutions of England. James Wilson emigrated 
from his birthplace in Scotland to America in the days 
when John Dickinson was one of the leaders of the Phila- 
delphia bar. Wilson studied law in Dickinson’s office 
prior to the outbreak of the Revolution; he was one of 
those pre-Revolutionary pamphleteers who tried to make 
clear the nature of the British Empire as a commonwealth 
of nations rather than as a centralized and consolidated 
state. When those efforts proved of no avail he threw 
in his fortunes with the patriot party. The outbreak of 
the war found him a member of the Second Continental 
Congress. He has the remarkable record of being one of 
six men who signed both the Declaration of Independence 
and the Constitution of the United States, and he has the 
unique distinction of being the only member of Penn- 
sylvania’s rather large delegation to the Federal Conven- 
tion who was also elected a member of the Pennsylvania 
State Convention which ratified the Federal Constitution. 
The part he played in those meetings is evidenced by the 
historical and legal comments which have been made upon 


[134] 


THE LEGAL THEORIES OF JAMES WILSON 135 


him, “that he was the most learned lawyer of his time,” 
“one of the deepest thinkers and most exact reasoners 
among the members of the convention,” “the real founder 
_ of what is distinctive in our American jurisprudence,” 
“recognized as the most learned member of the Constitu- 
tional Convention,” “ablest and most learned of the asso- 
ciates” on the Supreme Court, of which he was a member.} 
James Wilson’s notable services in the period after the 
Revolution have secured his place in the political history 
of the United States,? but it seems extremely questionable 
whether what we may call the science of jurisprudence has 
accorded to him the place to which he is probably entitled. 
That question becomes even stronger when one hears some 
of the professors of international law proclaiming from 
their chairs either that there is no such thing as interna- 
tional law, or hears them define law in terms that deny 
international law a place. In the presence of such writers 
and lecturers one is tempted to paraphrase Blackstone, and, 
as he advised Englishmen not to sacrifice Alfred and Ed- 
ward to Theodosius and Justinian, to suggest to them that 
perhaps they might find it of practical value not to sacri- 
fice James Wilson to John Austin and his school. The 
difference between the sense and definition of law upon 
which the era of the American Revolution depended for 
its politico-juridical ideas and that which has produced a 
great deal of recent ante- and post-bellum chaotic think- 
ing, can, it would seem, be nowhere better illustrated than 
by an examination of the legal theories of Wilson. 
Following his own advice, that “law should be studied 
and taught as a historical science,’’? let us regard his legal 
theories as part of the history of that science. In the 
opening lecture before the students of the Law School of 
the University of Pennsylvania, where Wilson was the 
first professor of law in 1790, the lecturer remarked: 


+The comments of McMaster, Bryce, S. F. Baldwin, J. M. Harlan, 
and Cooley; for appreciation see L, H. Alexander in the North American 
Review, CLXXXIII. 971. 


2A. C. McLaughlin, Political Science Quarterly, XII. 1. 


8 James Wilson’s Works (Bird Wilson Ed.), (Phila: 1804), 1.5. Citations 
throughout are to this, the first, edition of Wilson’s works. 


136 POLITICAL IDEAS AMERICAN REVOLUTION 


“Were I called upon for my reasons why I deem so highly 
of the American character, I would assign them in a very 
few words—that character has been eminently distin- 
guished by the love of liberty and the love of law.’# 
Quite different was Blackstone’s opening in his first lec- 
tures as Vinerian professor at Oxford wherein he specifies 
the laws and constitution of England as being a species of 
knowledge, “in which the gentlemen of England have been 
more remarkably deficient than those of all Europe be- 
sides.”® Was Blackstone merely the more modest and 
Wilson merely the more boastful of the two, or were they 
talking about two different things when they used the 
term “law”? But let that story tell itself. If it be true 
that the “‘men of the Revolution saw only two alternatives: 
freedom or slavery,”® it is equally true that the men of 
the Revolution understood with a clearness which history 
cannot too frequently emphasize that freedom without the 
limitations.of law was worse than slavery. “Without 
liberty! law. loses its nature and its name and becomes 
| licentiousness.” This was the permanently valuable 
\political philosophy of the American Revolution. Care- 
fully documented historical explanations of the American 
Revolution in terms of taxation, the Acts of Navigation, 
or the competition for commerce tend to eclipse the ele- 
ment of sound political thinking in which the founders of 
the republic delighted. Yet in a true picture of the earl 
republic, political thinking in the abstract occupied a much 
larger place than it does in the political science of the 
twentieth century. This is a fact which cannot be neg- 
lected, however much it be minimized. 

James Wilson and other men who had the same intel- 
lectual ancestry, understood the interrelationship of law 
and liberty and conceived of liberty as freedom according 
to law. They threw off the yoke of England not as law- 
breakers but as preservers of the law. It is well known 
that independence was far from the minds of the bulk of 
4 Wilson Works, I. 5. 

5 Bl. Com. Intro. 4. 
®°C, E. Merriam, American Political Theories, p. 53. 


& 


THE LEGAL THEORIES OF JAMES WILSON 137 


the citizens of American colonies when the first Conti- 
nental Congress met.?’ What they wanted was liberty 
under the limitations prescribed by the British constitu- 
‘tion. They felt that they were being persecuted by the 
real law breakers, the Parliament that had violated the 
constitution. “Have not British subjects, then, a right to 
resist force employed to destroy the very existence of law 
and of liberty? They have, sir, and this right is secured 
to them both by the letter and the spirit of the British 
Constitution, by which the measures and the conditions 
of their obedience are appointed. The British liberties, 
sir, and the means and right of defending them, are not 
the grants of princes; and of what our princes never 
granted they surely can never deprive us.’’® It seems to 
be a peculiarity of the Anglo-American Revolution that | 
it was conducted, not so much for completely overturning “ 
the old order and making a new lot of laws, as for the! 
purpose of securing the benefit of the rights which the 
old laws assured but which a particular government was 
withholding. This fact should be kept in mind in trying 
to ascertain the conception of law in the period of the 
American Revolution. Law was not merely a convenient 
rule, which might be adopted one day and rejected the 
next at the whim of some Assemblée Nationale or Soviet; 
it was something a good deal more fundamental than that.® 
To James Wilson, there were two totally distinct bodies 
of law: natural laws and human laws. The political 
thinkers of the eighteenth century frequently confused 
these categories elaborately. Wilson separated them, 
clearly, distinctly, and serviceably. The natural law was 
the immutable, universal, moral law, the will of God. It 
would be indeed valuable to know more about it. But it 
7“As our proceedings curing the existence and operation of the Stamp 
Act prove fully and incontestably the painful sensations that tortured our. 
breasts from the prospect of disunion with Britain; the peals of joy 
which burst forth universally upon the repeal of that odious statute loudly 
proclaim the heartfelt delight produced in us by a reconciliation with her.’’ 


Wilson’s Speech In the Covention of the Province of Pennsylvania, Jan- 
wary 1775, Wilson, Works, III. 251. 


8Tbid., III. 262-3. 


® That this conception antedates the idea of Law as a Command, vide E. 
Jenks, Law and Politics in the Middle Ages, pp. 7-62. 


138 POLITICAL IDEAS AMERICAN REVOLUTION 


is hardly a subject to be treated in this effort and in this 
day when men are less confident than they were formerly 
of their ability easily to penetrate into the counsels of the 
Almighty. Hence we turn to the more modest task of 
trying to explain what James Wilson called human laws, 
and in that field there is much to be done. It was this 
second body of law that Wilson saw with such vividness 
when he set himself to attack the views of many of the 
publicists of his day on the nature of law. Those views 
presented just the same confusion of ideas and lack of 
clear thought that is manifested today in connection with 
that department of law which is known as international 
law. The stumbling block lay in the question of the defi- 
nition of law, for upon that depended the question of 
obligation. Is it law if it is not observed? This ques- 
tion springs from a conception of law quite familiar in the 
writings of publicists from Puffendorf to Blackstone and 
from Blackstone to Austin. The view that law is a com- 
mand given by a superior to an inferior which the inferior 
must obey upon the pain of some sanction is an easy and 
a simple thing to understand. But, as has been observed, 
this definition leaves no room for such branches of law as 
international law. And the contributions which America 
has made to international law, both of letter and spirit, are 
of a character which naturally turns our inquiries toward 
some more representative American conception of law 
than that given by Blackstone or Austin. Such a con- 
ception formed a part of that political philosophy of the 
American Revolution in which so many of our national 
ideals took form, and there are few jurists who stated it 
so clearly as did Justice Wilson. 

“Law is a rule of action,” said Blackstone, “and it is 
that rule of action which is prescribed by some superior 
and which the inferior is bound to obey.”!° At this point 
the new professor of law in the new American university 
took issue with the Vinerian professor. “A superior! 
Can there be no law without a superior? Is it essential 
to law that inferiority should be involved in the obligation 


1 Bl. Com: Intro. 38. 





THE LEGAL THEORIES OF JAMES WILSON — 139 


to obey it?’14 Here Blackstone exhibited just that con- 
fusion of natural and human laws which Wilson was at 
pains to differentiate. Certainly, there were natural laws 
which presumed the existence of a superior—God—but 
fo confuse these with human laws was to presume that 
God had some temporal deputy on earth to whom he had 
confided the power of enunciating his law. This was in 
essence the divine rights of kings which the Revolutionary 
thought of both England and America had overthrown. 
The conception of law that Blackstone prescribed was the 
essential element of “a prerogative impiously attempted to 
be established—of princes arbitrary to rule; and of a cor- 
responding obligation—a servitude tyrannically attempted 
to be imposed—on the people implicitly to obey.”?? It 
was to the introduction of superiority as a necessary part 
of the definition of law that Wilson objected. The idea 
itself is as old as Rome and as tyrannous as Cesar. ‘“In- 
deed on the principle of superiority, Caligula’s reasoning 
was concise and conclusive, ‘If 1 am only a man, my sub- 
jects are something less ; if they are men, then I am some- 
thing more’.”1% Such would be the logical and necessary 
conclusion of attributing to a superior the authorship of 
human laws. Could such a conclusion ever be brought 
into line with the American political principles as set forth 
in the American constitutional documents? It is difficult 
to see how it could. For these were human laws, and 
once the element of superiority and inferiority was intro- 
duced, the element of the equality of man was lost. 

Such a proposition arouses at once the question: what 
about the state? Did not, or would not, he admit that the 
_ state was superior to the individual? The question is a 
difficult one to answer, for Wilson’s utterances do not, at 
first glance, seem to be altogether consistent in this mat- 
tere But a little reflective reading seems to make the mat- 
ter not such a difficult one after all. In the first place, 
_ the eighteenth century thinker never lost sight of the fact 
_ that political machinery existed for men, and not men for 


4 Wilson, Works, I. 65. 
2 Wilson, Works, I. 66. 
# Wilson, Works, I. 92. 


140 POLITICAL IDEAS AMERICAN REVOLUTION 


political machinery. Hence, when he personified the 
state, it was as a figure of speech rather than as an act 
of awesome deification. Its dependence on the people 
which composed it was an essential element of the state. 
“In free states,” says Wilson, “the people form an arti- 
ficial person or body politic, the highest and noblest that 
can be known.” In that definition, the eighteenth century 
would have emphasized the words “people” and “arti- 
ficial’”’ in a way in which one might not emphasize them 
today unless his attention was especially directed to it. 
The “moral person” which was thus constituted was de- 
scribed “‘as a complete body of free natural persons, united 
together for their common benefit; as having an under- 
standing, and a will; as deliberating, resolving and acting; 
as possessed of interests which it ought to manage; as en- 
joying rights which it ought to maintain; as lying under 
obligations which it ought to perform. To this moral 
person, we assign by way of eminence the dignified appel- 
lation of ‘state’.”!4 In discussing the state, he observed 
“that it is its right and generally its duty, to form a con- 
stitution, and to institute civil government and to establish 
laws.” From this the hasty reader might conclude that 
after all the state was the “superior” which made the 
laws, and hence Blackstone was quite right after all. But 
this conclusion would miss the whole spirit of the Revolu- 
tionary philosophy. There is nothing quite like a debate 
to make a man show his whole hand, and hence we may ~ 
look for Wilson’s own interpretation of his idea of the 
state in the great debate with which the United States 
began. 

ih the Federal Convention of 1787 the idea of a “state” 
was a thing very much more clear-cut than ordinarily 
comes to mind when that word is used today in connec- 
tion with one of the component members of the Federal 
Union. There were small-states men and large-states 
men, and there were states’-rights men, and they were a 
great deal more “‘state-conscious” than one would imag- 
ine who lives in the twentieth century, when the word 


44 Wilson, Works, II. 120-1. 


THE LEGAL THEORIES OF JAMES WILSON 141 


“state,” in connection with one of the United States, has 
become a relatively less important and less thought about 
entity. Yet, it was probably with just some such idea of 
the nature of the state as Wilson defines it above that the 
- state-rights men and the small-states men urged the claims 
of their states. There was a “state-sensitiveness” in that 
day which has been distinctly on the wane since the War 
between the States. Consequently, if we would get our- 
selves in the proper mental attitude to understand the 
thought of a past era, we must understand what they 
meant by words which today have assumed a different ~ 
connotation. When on that memorable thirtieth of June, 
the Federal Convention seemed deadlocked because the 
small-states men insisted upon equal rather than propor- 
tionate representation, the rights of the “states” were 
urged in a language which betokens the existence in the 
minds of the states-rights men of an idea of “state” much 
like in content the technical sense in which that word is 
used today, i.e., as an individual member of the family of 
nations. Delegates talked of their right to join some for- 
eign power in case their wishes were not granted.t° Under 
these circumstances James Wilson uttered words which 
more clearly delineate his conception of the relationship 
between the people, the law of the Constitution, and the 
state than we can glean from his more didactic utterances 
from the lecture platform. “If the minority withhold 
their consent to the new plan, if they will have their own 
way and go out of the Union, then let them go. Shall 
three-fourths be ruled by one-fourth? Shall three- — 
fourths give up their right for the support of an artificial 
being called state-interest? For whom do we make a 
Constitution? Is it for men, or is it for imaginary beings | 
called states; a mere metaphysical distinction?’!® What | 
Wilson was trying to help build was a national state and 
not a confederacy, hence when those spoke who had the 
confederacy idea in mind his chief argument lay in show- 
ing his colleagues that the state existed for the people and 


% Max Farrand, Records of the Federal Convention, I. 501. 
16 Farrand, Records of the Federal Convention, I. 494. 


142 POLITICAL IDEAS AMERICAN REVOLUTION 


not the people for the state. If the people wanted one 
national unit, they were entitled to have it and not to be 
blocked by acutely-state-conscious delegates who, regard- 
ing the state as a thing in itself, wanted a confederacy of 
pstates.** 

Had one asked James Wilson whether he regarded the 
state as superior to the individual, he would probably have 
said that such a question betrayed an unfamiliarity with 
the true nature of law. . A state was merely an aggregate 
of people which expressed its will in the law of the con- 
stitution, which in turn formed a government. To en- 
dow a state with a metaphysical or a spiritual nature, to 
grant it an existence above or apart from the people was 
totally to misunderstand the thought of the Revolutionary 
period in America. Nowhere does this come out more 
clearly than in Wilson’s discussion of sovereignty: the 
sovereignty of the state was not a term in which he 
thought; the sovereignty of the people was all he under- 
stood.1§ 

Now if the element of superiority were permitted to 
remain in the definition of human law, mankind would 
be compelled to answer the question as to whether it was 
a superiority of force or of excellence by which the su- 
perior claimed his right to impose his will upon the in- 
ferior. The former is exactly what Anglo-American 
revolutions were fought to avoid, and it is easily disposed 
of. “For us, as men, as citizens, as states,” it is sufficient 
to say that power is nothing more than the right of the 
strongest, and may be opposed by the same right, the same 
means and the same principles which are employed to es- 
tablish it. Bare force, far from producing any obligation 
to obey, produces an obligation to resist.”19 On the other 
hand, if the superiority be based upon excellence, if the 
superior claim any superiority by virtue of his being more 
wise, who will take upon himself to make such judgment? 
To speak of superiors involves the implication that there 


17 See also Wilson, Works, I. 360, where he uses “state” and ‘“‘society” 
interchangeably. 


18 Wilson, Works, I. 25. 
19 Wilson, Works, I. 71. 


THE LEGAL THEORIES OF JAMES WILSON 143 


are inferiors; is government consciously to take cogni- 
zance of the inequalities of men? If so, what is the 
standard? “Is this a foundation sufficient for supporting 
the solid and durable superstructure of law ?’2° 
'  Wilson’s knowledge of comparative governments was 
necessarily more limited than would be the case today, yet 
it is remarkable how carefully he selects the illustrations 
with which his points are elucidated. The classic refer- 
ences abound, of course; he would not have been a true 
representative of the eighteenth century if they did not. 
But his reading in the political scientists of all nations was 
extensive, not merely among the English writers, but 
among the Continental writers of his day as well. Yet he’ 
never forgets the essential distinction which makes his 
work of such practical value, namely, the separation of the 
idea of the law which God makes and the idea of the law 
which man makes. In the case of the former he would 
not deny the existence of a superior, but in the case of 
man-made laws he does make this denial, and manifests 
therein the germ of what is distinctively American in. 


political science, government by the consent of the gov-. 
erned. “Let it be remembered all along, that I am exam- 
~ ning the doctrine of superiority as applied to human laws, 
the proper and immediate object of investigation in these 
lectures. Of the law that is divine, we shall have occasion 
at another time to speak with the reverence and gratitude 
that becomes us.” 2! In the light of this clear distinction, 
since the alleged superior cannot rest his title on any in- 
herent qualities such as goodness or force, from what 
source can such superiority be derived? Divine source 
being ruled out, both by reason of the fact that it involves 
not human, but divine laws; or, if the two be confused, it 
is even more ruled out because it involves the divine right 
of kings, what source remains? “How is this superior 
constituted by human authority?” 2? 

Is the superior constituted by law? If he is, then the 


2 Wilson, Works, I. 74. 
21 Wilson, Works, I. 71. 
2 Wilson, Works, I. 83. 


144. POLITICAL IDEAS AMERICAN REVOLUTION 


power which constituted that law is his superior, and we 
are confronted by the same question as before.2* So the 
will of a superior is discarded as an improper principle of 
obligation in human laws. It will stand the test of neither 
reason nor experience; it contains the germ of tyranny, 
and it provokes the alleged inferiors to resistance and re- 
volt. The idea of law as a policeman’s club is just the 
idea which Wilson would have his students avoid. How- 
ever much it might represent the law and the idea of law 
in foreign lands, it was not the Anglo-American idea as 
he understood it. Not that he was an advocate of pure 
moral suasion; far from it. He maintained, rather, that 
the force which is the sanction of law is not the exclusive 
property of an alleged superior to do with as he chooses. 
The superior which exists for the sake of convenience in 
administration exercises whatever force he does only at 
the bidding of the alleged inferior, by whose consent he 
exercises also his temporary superiority. 

Thus it is, that when asked what in his view was the 
essential element of law which he would substitute for the 
idea of a superior with a sanction, Wilson states unequiv- 
ocally, “In its place I introduce the consent of those whose 
obedience the law requires. This I conceive to be the 
true origin of the obligation of human laws.”24 Customs 
were the first laws known to men, certain conventional 
habits of actions which mankind observed simply by rea- 
son of the necessary requirements of peaceful human in- 
tercourse. Customary law was rudimentary law, and 
when the conventional types of action crystallized into 
rules enforceable in the courts of law, the evolution of law 
might be said to have reached its latest stage. Customary 
law was not the dictate of a superior to an inferior. It 
was introduced by voluntary adoption and became general 
by the simple process of instances of that voluntary adop- 
tion being multiplied. It became lasting by satisfactory 
experience, which ratified and confirmed what voluntary 


23 Wilson, Works, I. 85. 


24 Wilson, Works, I. 99. Cf. ‘Finally the State submits itself_to an 
objective law, based on the Sea yg right of the individual.”—L. Duguit, 
Law in the Modern State, XXXIX. (Laski, tr.) 


THE LEGAL THEORIES OF JAMES WILSON 145 


action had adopted and introduced. “In the introduction, 
in the extension, in the continuance of customary law, we 
find the operations of consent universally predominant.” 
In the regulations of justice and of government, customs 
have been more effectual than the best of written laws. 
This view was in his estimation the only view that could 
be held by an eighteenth century lawyer. “Let me men- 
tion, in one word, everything that can enforce my senti- 
ments: the common law of England is customary law.’’® 
One need go no further to understand what Wilson con- 
ceived to be the essential nature, origin, and source of the 
obligation of law. Here was not necessarily any elab- 
orate fiction of social contract or any discussion of the 
rights which mankind retained over and above what the 
limitations of the law took away from him. The simple 
distinction here made between common and statute law 
was not an ultimate distinction in origin or obligation. The 
law which was produced by the enactment of legislative 
assemblies derived its obligatory force only from that same 
consent, given less formally, but none the less effectively 
in the formation of the customary, common law. ‘“‘Where 
is the difference whether the people declare their will by 
their suffrage or by their conduct.”2® For “customs for 
a long time were the only laws known among men,” and 
“custom is, of itself, intrinsic evidence of consent.”27 In 
the Anglo-American legal system, Wilson could not re- 
gard statutory enactment as the only, or even the princi-_. 
pal, species of law. The English common law, “founded 
on long and general custom” which in turn can be founded 
on nothing but free and general consent, is the principle 
connotation which the word “law” had for him.28 To 
‘him the eighteenth century nomenclature was not his 
master, but his servant. Certainly, he would admit of 
“compact,” “contract,” “covenant,” “bargain,’ and what- 
not; “let them be called covenants, or bargains, or stipu- 
lations and anything similar to any of those, still I am 
2> Wilson, Works, I. 100. 
26 Wilson, Works, I. 64. 


27 Wilson, Works, I. 99, 100. Cf. Jenks, Law and Politics, p. 57. 
28 Wilson, Works, I. 206. 


146 POLITICAL IDEAS AMERICAN REVOLUTION 


satisfied, for still everything mentioned, and everything 
similar to everything mentioned, imports, consent. Here 
history and law combine their evidence in support of con- 
sent.”29 This theory of the nature of law, Wilson re- 
garded as quite different from that of Blackstone, whom 
he thought followed rather after Hobbes and Puffendorf. 
His own, though, he traces back rather through Vattel and 
Locke. This, moreover, was typical of the political phil- 
osophy of the Revolutionary period in America.?° 

If one would understand James Wilson’s place in the 
history of jurisprudence, it is not so much the comparison 
with Blackstone which elucidates his theories as a com- 
parison with another English legal writer of whom he 
probably never heard; John Austin was born in the year 
in which Wilson began to lecture. James Wilson’s legal 
theories were the product of many years’ study of the 
writers of many nations; but that studying was done in 
the intellectual atmosphere of the American Revolution, 
and chiefly in Philadelphia, where Wilson lived for many 
years. John Austin studied at the Inns, yet one cannot 
but feel that his jurisprudence was colored by those years 
spent studying in Germany in the intellectual atmosphere 
of the reaction after the Napoleonic wars. At any rate, 
his doctrines furnish an antithesis which brings out the 
Wilson doctrine by contrast. To Austin, as to Black- 
stone, a law was a command “which proceeds from super- 
iors and obliges inferiors.’”’ Yet he is more explicit and 
emphatic than Sir William. “The term superiority signi- 
fies might ; the power of affecting others with evil or pain, 
of forcing them through fear of that evil to fashion their 
conduct to one’s wishes.’’ ‘In short, whoever can oblige 
another to comply with his wishes is the superior of that 
other, so far as his ability reaches; the party who is ob- 
noxious to the impending evil being, to that same extent, 
the inferior.’?! Such was Austin’s theory of positive 


2 Wilson, Works, I. 101. 

209 Wilson, Works, I. 69, 82, 84. 

81 John Austin, Lectures on Jurisprudence, 3d Ed., (1869), I. The first 
lecture contains some interesting definitions, especially pp. 88-99. ne 
of the clearest criticisms of Austin in more recent thought can be found 
in Paul Vinogradoft’s little book Common Sense in Law—Chapter II.—Cf. 
also Duguit, Law in the Modern State, Ch. II. 


THE LEGAL THEORIES OF JAMES WILSON 147 


law. Of course international law has no place by this 
definition, for international law is customary law, par ex- 
cellence. Austin’s idea was of a law from above, the 
obligation to obey which comes from the fear of a superior 
force, rather than the idea of a set of rules which men 
have agreed to observe and which derive their obligation 
from the consent of those men. As to which is the 
higher sense of law, it is a question of demonstration.3? 

But if Wilson’s legal theories be held to give us a 
formula by which international law can be elevated to a 
more respectable place in the science of jurisprudence, 
that was quite an incidental consideration on his part. 
When he comes to that subject itself there is another con- 
tribution of another sort. The course of lectures, which 
includes everything from legal philosophy to torts and 
crimes, brings the eighteenth century law students, in the 
fourth session, to the “Law of Nations.” Once more we 
find the clear-cut distinction between those laws of nations 
which take their origin in the law of nature, in divine law, 
and those laws of nations which find their origin in con- 
sent. Any thorough study of Wilson must take account 
of the former, but since we have assigned ourselves the 
less pretentious task of setting forth his views on human 
laws, we must come at once to that investigation. Wil- 
son’s contributions to what he would call “the voluntary 
law of nations,” or what we know as “‘international law” 
as opposed to “international morality,” are scant indeed. 
He criticized Grotius freely for applying so rigorously 
that rule of consent which he himself emphasized when 
dealing with law in the abstract. He was frankly more 
interested in international morality and expressed opin- 


“We are, perhaps, now, as never before, in a position to take historical 
cognizance of the effect of this distinction. The German has been accus- 
tomed to regard the American as a rather lawless person, a canclusion 
only heightened by the American’s disregard for a sign bearing the magic 
word “Verboten.”” The American has learned to regard the German as 
an unfair player, one who disregards the rules of the game, who hits 
below the belt. The one obeys commands; the other observes rules. The 
one derives his sense of obligation through a sense of fear; the other 
through a sense of fair-play. The one is the product of discipline, the other 
of sportsmanship. Possibly, one may even go so far as to say that the 
one is concerned with the letter, and the other with the spirit of the law. 
At any rate it is easy to see which is the product of the Austinian and 
which of the Wilsonian point of view. 


148 POLITICAL IDEAS AMERICAN REVOLUTION 


ions which take the form of pious expressions of hope, 
rather than statements of practice.22 Should any of his 
students have dropped out of the course at the close of 
this lecture, he would have got little from his professor's 
exposition of the subject of international law. It is true 
that Wilson did touch upon the deeper questions of this 
field, for to say “he who has made a promise to another 
man has given that other a perfect right to demand the 
performance of the promise,” is a statement which is 
hardly Machiavellian. On the obligations of treaties he 
is as explicit as any writer before or since: “Nations and 
the representatives of nations ought, therefore, to pre- 
serve inviolably their treaties and engagements: by not 
preserving them, they subject themselves to all the conse- 
quences of violating the perfect right of those to whom 
they were made. . . . In public as in private life, 
among sovereigns as among individuals, honesty is the 
best policy, as well as the soundest morality. Among 
merchants, credit is wealth; among states and princes 
good faith is both respectability and power.”%* But the 
trouble with such pronouncements then, as now, was that 
such principles are rarely denied in theory, while fla- 
grantly violated in practice, a fact which makes Wilson’s 
conception of the nature of law the more important. 

But fortunately he does not stop here. The ninth lec- 
ture of the series bears the interesting title “Of Man as a 
Member of the Great Commonwealth of Nations.” 
Herein he conceives the nations of the world as dwelling 
together in that natural society, that “state of nature,” 
which the compact theorist assured him had existed prior 
to government. Yet even in this natural society, states 
existed under the law. For a state to make a figure in 
the great society of nations, it is sufficient that it be inde- 
pendent, ie., “that it govern itself by its own authority.”?° 
But to secure justice in “the great society, equality is the 
basis and the rule. To this equality, the inferiority of 


83 Wilson, Works, I. 149 ff. 
*% Wilson, Works, I. 176. 
% Wilson, Works, I. 360. 


THE LEGAL THEORIES OF JAMES WILSON 149 


subjection and the superiority of command are, alike, re- 
pugnant. This equality of nations is the great and general 
foundation of national rights. In this matter no regard 
is had for names, “all were alike before the law of nations, 
whether empires, kingdoms, commonwealths, or free 
towns.”3° The abstract admission as such of this legal 
principle is of little value unless some machinery be pro- 
vided for its administration, and consequently one inquires 
how this right is to be secured in a world where war still 
exists, where “among nations, as well as among individ- 
uals, differences and causes of differences will sometimes 
unavoidably arise.” “Since above independent nations no 
coercive authority exists to which recourse may be had for 
a decision of the controversies, there are several successive 
steps which should be taken. Controversies often happen 
in which neither party is intentionally wrong, where mere 
misapprehensions and mistakes are the cause of the fric- 
tion. In such cases nothing more is necessary for ami- 
cable accommodation than candid conferences and mutual 
explanation.”°7 Such is the simple method of bilateral 
diplomatic negotiations. 

But “if the parties themselves, notwithstanding their 
peaceful and proper inclinations, cannot finally agree upon 
terms, according to which the differences may be adjusted, 
those terms may in many instances be arranged and set- 
tled by the kind and benevolent mediation of a common 
friend” who should remember that his office is to concili- 
ate and not to judge.38 But if neither friendly negotia- 
tion nor the benevolent mediation of a third power will 
avail, there is yet another method “by which mutual irrita- 
tion and much more dreadful extremities may be pre-. 
vented between those who have no common judge on earth 
to whom they can appeal. This method is to refer the 
matter in dispute to an award of arbitrators.’’°® If arbi- 

%¢ Wilson, Works, I. 362. Cf. John Marshall’s ‘‘No principle of general 
law is more universally acknowledged than the perfect equality of nations. 


Russia and Geneva have equal rights.” The Antelope, 10 Wheaton, 66, 
122, (1825). 


87 Wilson, Works, I. 364. 
38 Wilson, Works, I. 365. 
29 Wilson, Works, I. 365. 


150 POLITICAL IDEAS AMERICAN REVOLUTION 


‘ 

tration fail the next alternative is the summoning of an 
international congress “‘in which the differences of con- 
tending parties might be determined by those altogether 
disinterested in them; and in which, likewise, some effect- 
ual means might be devised and carried into execution for 
compelling nations at war to conclude peace upon fair and 
equitable conditions.” But as Wilson wrote this twenty- 
five years before even the very deficient Congress of 
Vienna, he had little historical data with which to elabo- 
rate this point. The congresses of the eighteenth century 
called for such purpose “were nothing more than pompous 
farces, acted with great parade, by those who wished to 
appear solicitous for accommodation, but who in fact were 
little solicitous to promote it.”*° Beyond these methods 
of international conciliation, he knew of nothing which 
legal practice would suggest other than reprisals which 
would in most cases merely be the stepping stone to war. 
So much for the law of nations as he knew it. It will be 
observed that all these methods depend for solution on the 
existence of rules of law to which the negotiators and 
arbitrators may appeal, yet which are not rules or com- 
mands given by a superior to an inferior, because in inter- 
national affairs there is no superior.*! 

But Wilson was too good a political scientist to stop 
there. ‘‘All the modes of adjustment which have hitherto 
been mentioned presuppose the reconciliation of irritated 
minds,” is the way in which he introduced his own theory 
of solving the problems of war. “But must the peaceful 
adjustment of controversies between states, an adjustment 
so salutary and so necessary to the human race, depend on 
events so precarious or so very improbable? Must the 
alternatives in disputes and differences between dignified 
assemblages of men, known by the name of nations, be the 
same which are the prerogative of savages in the rudest 
and most deformed state of society—voluntary accommo- 
dation or open war, or violent reprisals, inferior in odium 
only to war? Individuals unite in civil society and insti- 


Wilson, Works, I. 367. 


“1 Cf. Jenks’ comment on “Law as a truth to be discovered and not as 
a command to be imposed.” Law and Politics, p. 9. 


THE LEGAL THEORIES OF JAMES WILSON 151 
, 

tute judges with authority to decide, and with authority 
also to carry their decisions into full and adequate execu- 
tion that justice may be done and war may be prevented. 
Are states too wise or too proud to receive a lesson from 
individuals? Is the idea of a common judge between na- 
tions less admissible than that of a common judge between 
men? If admissable in idea, would it not be desirable 
to try whether the idea may not be reduced to practice? 
To return to the original question—has or has not our 
national constitution given us an opportunity of making 
this great and interesting trial ?’’4? 


In a word, Wilson was struck with the idea which has ~ 


occurred to many men since his day, that the United States 
Supreme Court was in effect an international tribunal for 
the settlement of disputes between states. Asa matter of 
fact, that is just the function the Supreme Court has fre- 
quently exercised, administering international law, and 
being guided in its decisions by the principles of that 
law.42 It was obvious to Wilson in the second year of 
the Supreme Court’s existence that, being authorized to 
take jurisdiction in cases between states claiming to be 
sovereign, it would form an interesting object of study for 
comparative jurisprudence as an example of an inter- 
national court. As a product of the English common law 
system, Wilson could not but be impressed with the latent 
possibilities of such a court, proceeding along lines analo- 
gous to those of the English common law courts adminis- 
tering a customary international law, which was akin to 
the customary common law, and in certain sense even a 
part of it. Hitherto international law “has been applied 
and administered by the force or at the pleasure of the 
parties to the controversy; in the United States it can now 
be applied and administered by impartial, independent and 
efficient, though peaceful, authority,” in such cases as come 
within its jurisdiction. To Wilson’s imagination this idea 
opened up a magnificent prospect of the government of 


® Wilson, Works, I. 377. 


4 See R. I. vs. Mass., 4 How., 491, and Va. vs. Tenn., 148, U. S., 
503, 522-4. 


152 POLITICAL IDEAS AMERICAN REVOLUTION 


law, and of international peace based upon the existence 
of a court for the judicial settlement of international dis- 
putes. His dream of world peace was not only in terms 
of a hypothetical super-state but also in terms of a very 
real super-court.*4 

It is probably superfluous now to point out that the 
effectiveness of such a court would depend entirely upon 
the sense of law possessed by those who submit their cases 
to it. If the litigants in a controversy felt that the law 
thus administered was merely the dictate of a superior, 
and if the actions of the court were such as to justify that 
opinion, the court would have little value. If on the other 
hand the litigants possessed the spirit of fair play and a 
willingness to abide by rules because of their personal in- 
terest in the making of those rules, and if the court were 
actuated by a like motive, Wilson’s dream was not.a vain 
thing. But the whole question depends upon the accept- 
ance of his original and fundamental legal theories. 


** Wilson, Works, I. 380. Cf. Duguit, Law in the Modern State, p. 89. 





CHAPTER VIII 
LIMITING AND DIVIDING SOVEREIGNTY 


Broadly speaking, the British imperial problem was, 
and is, the task of reconciling two jealous tendencies. 
How can the existing limitations upon the independence 
of the dominions be relaxed, while at the same time a 
sufficient bond of unity is maintained to impel the com- 
munities that compose the empire-commonwealth to be- 
have like gentlemen in the league of nations to which 
they belong? How can sufficient latitude of action be al- 
lowed for the unfettered growth of the individual com- 
munity, while preserving at the same time a sufficient 
degree of respect for the central authority to insure the 
reference of differences to the arbitrament of tribunals 
rather than to the wager of battle, so that the framework 
of the empire-commonwealth may not be injured and thus 
incapacitated for performing its beneficent functions ?? 
Broadly speaking, this is the task of any league of nations, 
whether, as in the case of the Britannic Commonwealth, 
we begin with the one and work toward the many, or, as 
in the case of a more universal league, we begin with the 
_ many and work toward the one. The separate identity of 
_ the one and of each of the many must be preserved, else 
_ the problem is not solved. 

Now in all this the chief problem of thought lies in 
what the books call “sovereignty.”” Your philosophical 
thinker will inquire of the imperial and international po- 
_ litical engineer, how sovereignty is to be preserved. Your 
_ unphilosophical thinker will ask practically the same ques- 
| tion when he wonders what is to become of independence. 
_ Therefore, no study of the political thought of the Ameri-_ 
can Revolution can leave this question out of account. 
_ But let none be deceived. Few thinkers of this or any 
_ other age can really think clearly in terms of sovereignty, 


1A. B. Keith, Imperial Unity in the Dominions, p. 25. 
[153] 


154 POLITICAL IDEAS AMERICAN REVOLUTION 


and we ought to bear in mind that the men here to be 
considered are the exceptions. Not exceptions in the 
sense that they thought differently from the majority, 
but exceptions in the sense that they thought at all. As 
the political thought of the Revolution unfolds, we ob- 
serve that thinker after thinker drops by the wayside as 
the problem approaches this question of sovereignty. 
When Governor Hutchinson announced to the Massa- 
chusetts General Court that he knew of “no line that can; 
be drawn between the supreme authority of Parliament 
and the total independence of the colonies,” he touched 
the heart of this problem.2 Had he been able to draw 
that line, he would have been in the possession of the 
theory to mediate between absolute dependence and abso- 
lute independence, which, as has been observed, is not only 
the problem of the Britannic Commonwealth but of all 
international organization. Yet Englishmen are certainly 
among those whose history supplies material for the form- 
ulation of such a theory. It is more and more coming 
to be recognized that the rise of the British Empire can 
to a very large extent be told in terms of chartered trading 
companies. What were these companies? Attention has 
already been called to the fact that the science of corpora- 
tions is akin to the science of commonwealths. Perhaps 
it is not going too far to call these trading corporations 
embryo commonwealths, as their charters have been desig- 
nated embryo constitutions.? For example, the charters 
of the Merchant Adventurers, that great company for the 
export of English woolen cloth to the continent of Europe, 
were, in so many words, grants of power and authority 
for the better government of English merchants dwelling 
in the Low Countries, to insure order and justice among 
them. One can hardly read the successive charters of this 
organization without being struck with the idea that here 
is a trading corporation possessing a degree of govern- 
mental authority which practically made it a subsidiary 
government in some kind of a federation. Some of these 


2 Mass. State Papers, p. 340. 


z pia Morey, “Genesis of the Written Constitution,” Ann. Amer. Acad., 


LIMITING AND DIVIDING SOVEREIGNTY 155 


companies, of which the Merchant Adventurers is but a 
type, obtained certain extra-territorial privileges in the 
countries in which they operated. That is, their mem- 
bers were exempt from the jurisdiction of local tribunals 
in a great many cases, and subject to their own company 
court, a situation somewhat analogous to the “capitula- 
tions” of international law. Such, for example, was the 
case of the Muscovy Company.* These companies did in 
fact constitute little “imperia in imperio,” little states 
within a state, which the orthodox political scientists so 
abhor, but which persist, nevertheless. These companies 
existed by virtue of the charters which conditioned the 
exercise of jurisdiction on their part and delegated to 
them certain of the powers which otherwise belonged to 
the King in Parliament. Authority was thus divided, 
and the measure of that division was the charter, a set of 
rules which limited the power of both grantor and 
grantee.® 

Broadly speaking, the first Britannic self-governing 
dominions sprang from similar companies, and from their 
charters sprang the first constitutions. If, in these domin- 
ions, these colonial communities, any line was to be drawn 
between the authority of the King in Parliament and the 
authority of the dominion, an examination of the charter 
was certainly a material aid to one who wanted to draw 
that line. Now the objection must inevitably arise that 
since the King, or the King in Parliament, granted these 
charters, the companies or the colonies must necessarily 
in fact be subject to the power of the grantor. But this 
is no necessary consequence. The British Parliament 
passed the British North America Act; does that make 
Westminster supreme over Ottawa? It may be so in 
theory, but where is the Englishman who would take it 
upon himself to announce that fact from the housetops? 
If a line can be drawn between the respective fields of 


4C. P. Lucas, Beginnings of English Overseas Enterprise, p. 123. A. J. 
Gerson, Organization and Early History of the Muscovy Combanata pp. 47, 75. 


SW. EB. Ppecibach, Merchants Adventurers: Their Laws and Ordinances, 
PP. 203, 221, 

ok, P. Che ican History a Hagland rom the Defeat of the Armada 

to the Death of Elizabeth, 118 s if 


156 POLITICAL IDEAS AMERICAN REVOLUTION 


jurisdiction of the British Government and of a trading 
company, or embryonic commonwealth, the rules found in 
the charter played a very large part therein. Is not this 
placing a limitation, by a set of rules, upon the so-called 
sovereignty of either group? Anyone who would ration- 
alize the doctriné of sovereignty in interstate relationships 
will find valuable food for thought in the British imperial 
relationships, and insofar as the struggle over the British 
imperial problem that we know as the American Revolu- 
tion threw any light on that doctrine, it would be a very 
incomplete study of the political thought of the Ameri- 
can Revolution which would omit it.7 

“The American Revolution broke out, and the doctrine 
of the sovereignty of the people came out of the town- 
ships and took possession of the state.’ A little reflection 
on De Tocqueville’s remark may make clear both the doc- 
trine of sovereignty and the theory of the state as it ap- 
pears in the ideas of the Revolutionary period. The sov- 
ereignty of the people was said to take possession of the 
state; the state was not said to take possession of sover- 
eignty. Now it may be correct to say that after all “the 
political theory used by the Americans in the Revolu- 
tionary struggle was similar to that of the English revolu- 
tionists of the seventeenth century, as best stated by 
Locke,”’® though the record shows that the eighteenth cen- 
tury English heirs of the Locke tradition had some diffi- 
culty in squaring their thought with the American adapta- 
tion of the Lockeian ideas. But let us make our terms 
clear. The philosophers tells us that “Bodin was the 
writer to whom is due the first clear enunciation of the 
doctrine of sovereignty,’!° and upon turning to that 


7It is interesting to observe the interchangeability of terms to which 
the emergence of corporations into commonwealths in America gave rise. 
On Jan. 19, 1775, a colonial paper remarked, “The people of Marblehead 
met today and resolved that as a number of the individuals of the town 
may soon be called forth to assist in defending the charters and constitut- 
tions of the province” it were well that they be instructed in the art of 
war. Moore, Diary of the American Revolution, p. 12. 

8 De Tocqueville, Democracy in America (Gilman Ed., 1898), I. 70. 


ai E. Merriam, History of the Theory of Sovereignty Since Rousseau, 
p- 9. 


70H. Sidgwick, Development of European Polity, p. 328. 


LIMITING AND DIVIDING SOVEREIGNTY 157 


author it is discovered that “sovereignty is the supreme 
power over citizens and subjects unrestrained by laws.’’!1 
Even Grotius had admitted that sovereignty inheres in 
general in the state, so by the time of the American Revo- 
lution it was pretty well established in political thought 
that in every state there must reside somewhere a para- 
mount power to which all must bow, which was above all 
positive law, and, indeed, the source of that law.1? 
Gierke’s illuminating study has shown the position of 
sovereignty in its younger days before it was old enough 
to command the worship which later marked its progress. 
He has outlined clearly the notion which seems to have 
been prevalent in the middle ages, that the sovereignty of 
the state found its position somewhere below divine law 
(natural law) and somewhere above human law (positive 
law).13_ It is indeed hardly fair to call it sovereignty in 
this early stage, for the pyramided nature of the medieval 
politico-social structure hardly admitted as yet of the idea 
of a national state as it developed later. In this earlier 
stage, the idea of sovereignty can be observed as apart 
from the state, and hence as yet uncontaminated by the 
idea that it could be the exclusive possession of a semi- 
juristic group, standing in a constant state of nature and 
at war with numerous other similar groups, each possess- 
ing a similar chattel of which it is equally a jealous guard- 
ian. Here, in its separate condition (if, indeed, sover- 
eignty can have any separate existence at all), we find 
that, as far as medieval thought can be said to exhibit any 
degree of uniformity, thinkers were fairly unanimous that 
there was a natural, divine law of God, below whose rules 
stood the power of the state, and that power stood in turn 
above the human, man-made, positive laws.1* In an age 


uJ. Bodin, De Republica, Bk. I. ch. VIII. 
2 De Jure Belli ac Pacis, Ch. III. Sec. 8. 


13 A ‘positive’? law will be understood as a human rule which is con- 
tradistinguished from what James Wilson called ‘‘natural’’ or ‘‘divine” 
law. This satisfies Austin’s usage. See Lectures on Jurisprudence, I. 89. 
It does not exclude the lawyer’s definition of law as any rule which the 
ae will peneorce: See A. V. Dicey, Law of the Constitution, (8th Ed: 

huetR oer 


14Otto Gierke, Political Theories of the Middle Ages, trans. by F. W. 
Maitland, (1900), pp. 78, 93. 


158 POLITICAL IDEAS AMERICAN REVOLUTION 


which produced this kind of thinking, Bryce has shown 
how medizval theory constructed the civil on the model 
of ecclesiastical society, “how the Holy Roman Empire 
was the shadow of the popedom, designed to rule men’s 
bodies as the pontiff ruled their souls. Both alike claimed 
obedience on the ground that Truth is One, and where 
there is One Faith there must be One Government.’’!® 
This principle of formal unity was what the reformation 
overthrew, and hence we can detect political theories 
emerging from the middle ages as Gierke has outlined 
them, while at the same time we observe the idea of a sepa- 
rate state beginning to be applied to those national groups 
which the modern age has developed into the nation-states 
of modern Europe. Thus Bodin’s sovereignty, though in 
essence the idea may be as old as Aristotle, became the 
accepted theory of the supreme power which existed in 
any socio-national group. “There was,’ writes Gierke, 
“a steady advance of the notion that the state was an ex- 
clusive community. In phrases that tell of the antique 
world, men spoke of the state simply as ‘human society.’ 
The state is the all comprehensive, and therefore the one 
and only expression of that common life which stands 
above the life of the individual.’!® But taking an ex- 
clusive and potentially tyrannous authority from a pope 
or an emperor and giving it to certain national units did 
not solve all political problems, for there was so close an 
identification of the state with its government in the days 
of the absolute monarchs that the practical problems con- 
nected with sovereignty remained to be worked out in a 
series of revolutions which, in the case of central and 
eastern Europe, have lasted to our on day. 

Even the earliest of the revolutions, that of England, 
shows in its most representative spokesman, John Locke, 
a curious confusion of concepts of community, state, so- 
ciety, and government. It may be in some respects fair to 
base the American Revolutionary thought upon the teach- 


1% Bryce. Holy Roman Empire: (Ed. 1911), Chapter VII. of course, but 
see also p. 99n and 380. 


18 Gierke, p. 94. 


LIMITING AND DIVIDING SOVEREIGNTY 159 


ings of Locke, but in another sense it is misleading, for 
Locke did not always make that distinction which appears 
so forcefully in the writings of John Adams and Thomas 
Paine, that the community, or society, may have a will 
apart from the government, with a consequent corollary 
which would protect the rights of man and the rights of 
the minority against the whim of the majority who control 
the government.1* 

At the threshold of the temple of sovereignty, we pause 
to distinguish more clearly the image of the triple-headed 
god within.18 Today one of the heads is missing. For 
one of the senses in which the word was used is no longer 
of much consequence; in the sense of “a position of privi- 
lege held by the monarch of a state,’ the thought of the 
American Revolution definitely rejected sovereignty. It 
will be remembered that among those present at the de- 
capitation was Thomas Paine, whose “Common Sense” 
was a violent attack on the idea of sovereignty as resident 
in an heredity monarch. Nevertheless the image has two~ 
other heads which are still the recipients of the homage of 
the votaries at its shrine. “Sovereignty which is internal 
as paramount over all control from within any given state 
and sovereignty which is external as independent over all 
control from without,” are two senses in which the word 
has been and is used.1® At first we are concerned with the 
former of these two, with internal, political sovereignty. 
Bodin in the sixteenth century seems to have identified 
the residence of sovereignty with the de facto sovereign, 

47 John Locke, Two Treatises on Government, Bk. II. Sec. 95-101. 
“When any number of men have so consented to make one community 
or government, they are thereby presently incorporated and make one body 
politic wherein the majority have the right to conclude the rest.” Sec. 95, 
On the other hand see John Adams: “Rulers are no more than attorneys, 
agents and trustees for the people; and if the cause, the interest and trust 
is insidiously betrayed or wantonly trifled away, the people have to revoke 


the authority they themselves deputed and constitute abler and _ better 
agents, attorneys and trustees.” Works, III. 456-7. 


18 Following the three different senses in which Merriam’s analysis dem- 


onstrates that the word has been used, History of the Theory of Sover- 
eignty Since Rousseau, pp. 222-4 


27T. E. Holland, Elements of Jurisprudence, pp. 47-8, and Cf. R. T. 
Crane, Sovereignty in Constitutional and International Law, who distin- 
guishes the two almost mutually incompatible senses of internal and 


Pata Ta sovereignty which, nevertheless, persist in political thought, pp. 
1 


160 POLITICAL IDEAS AMERICAN REVOLUTION 


and used the word “prince” when discussing it.2° Such a 
sovereign was whomsoever the accident of birth left upon 
the throne of France. Hobbes registered the advance of 
the next century, the seventeenth, by placing sovereignty 
“in him or them, on whom the sovereign power is confer- 
red by the consent of the people assembled.’’?1 Finally in 
the writings of Locke and Rousseau sovereignty was 
found deposited with the people, and the theory of sover- 
eignty for politically revolutionary purposes was enun- 
ciated. 

But Englishmen had seized upon that phase of Locke’s 
writings in which he had emphasized that in any govern- 
ment the legislative is supreme; there appeared the doc- 
trine of the supremacy of the High Court of Parliament. 
That is one reason why it is not fitting to dismiss the 
whole political thought of the American Revolution as a 
mere adaptation from John Locke, because even if it was 
in one sense such an adaption, it adapted a phase of the 
Lockeian philosophy which had been neglected in Eng- 
land. Since we are not concerned so much with the origin 
of ideas as with their reappearance, American thought be- 
comes an even more distinctive thing in the light of the 
application made of those principles. If Locke enunci- 
ated them, so did Marsiglio of Padua, and Aristotle, too, 
for that matter, but none of those had the great oppor- 
tunity of thinking the right thoughts at the right time 
which was vouchsafed to the philosophers of the Ameri- 
can Revolutionary period. 

There is yet another reason why the thought of the 
American Revolution is a proper subject for investigation 
independently of the intellectual tradition to which it hap- 
pened to fall heir. Locke and Rousseau, it is true, enun- 
ciated the doctrine of popular sovereignty. For nearly 
two centuries two conflicting schools had waged a battle 
on the subject. Those who claimed that sovereignty was 
in its nature unlimited and the prerogative of the monarch 
fought with those who contended that man is endowed 


20 De Republica, Bk. I. Ch. X. 
21 Hobbes, Leviathan, Ch. XVIII. 


LIMITING AND DIVIDING SOVEREIGNTY 161 


with natural rights which the state can not legally invade. 
The American Revolution marks a victory for the latter 
party, but since that victory a very strange thing has hap- 
pened. As President Lowell has pointed out, the victors 
have adopted the principles of the vanquished which they 
struggled so long to overthrow.??. Sovereignty, supreme 
power unrestrained by law, was a menace in the hands of 
kings who might wield it as they would. But after the 
people had gained it for themselves, they gave it away 
again to the state and have learned to their sorrow the 
danger of enthroning the sovereignty of the state above 
positive laws. Anglo-Saxonwise, we would not part com- 
pany utterly with the past in reconstructing the theory of 
the state. It seems, therefore, that it would be hard to 
find a more illuminating period for study than that oppor- 
tune moment between the victory of the natural rights 
school over the divine rights school and the beginning of 
the modern doctrine which has revived the organismic 
theories of the state and has endowed the organism with 
supreme power, sovereignty, potential tyranny, and abso- 
lutism, which mankind strove so long to wrest from kings 
and princes. For after all, the natural rights school, to 
which our Revolutionary thinkers belong, could not think 
in terms of absolute, unlimited power anywhere outside 
of the deity, because the natural rights, themselves, were 
things which limited the powers of governments and 
states. 

The rebellion of the thinkers of colonial America against 
an omnicompetent sovereign dwelling thousands of miles 
away is a fact which it is interesting to associate with the 
fact that American thought emerged in an atmosphere of 
religious non-conformity. Now one of the groups which 
throughout history seem successfully to have challenged 
the claim of the state to paramount authority is the group 


22“But now, just at the moment when democracy is carrying everything 
before it and the advocates of natural rights of man appear to have tri- 
umphed, there has come a sudden change of principle, and the victors, 
adopting the opinions of the vanquished, are almost universally convinced 
that the authority of the sovereign from its very nature can be subject 
to no limitation of restraint.” A. L. Lowell, “Limits on Sovereignty,” 2 
Harvard Law Review, 70, ff. 


162 POLITICAL IDEAS AMERICAN REVOLUTION 


to which, without designating any particular sect, we can 
give the name of the church. From the struggle over the 
investitures to the Kulturkampf, there are examples of it 
that would make him a bold historian who asserts that the 
state has been victorious in every instance.?? Yet to make 
good its claim to sovereignty the state would really have to 
be sovereign, i.e., the paramount authority. Hence there is 
nothing very strange in the sight of the descendants of 
men who asserted the right of their group against the su- 
perior claims of the so-called sovereign state, undertaking 
to assert their rights again in another group capacity, 
this not a religious group but a frankly political one. 
Britons conceived the empire as a unicellular state 
wherein sovereignty was possessed, according to the 
Lockeian dogma, by the legislative, that is, by the High 
Court of Parliament at Westminster. Britons talked 
about “our sovereignty” over the colonies. Benjamin_ 
Franklin finally burst out, “I am quite sick of ‘our sover- 
eignty 2+ To his mind "the empire was not unicellular, 
and it was high time that Britons came to recognize that 
the communities across the seas were equal in rank and 
dignity to the island off the coast of Europe which arro- 
gated to itself the headship of the empire. Bryce?® and 
Dicey?® have tried to solve the riddle of sovereignty in 
Britain by distinguishing the “legal sovereign” (Parlia- 
ment) from the “political sovereign” (the electorate). 
Franklin’s remark epitomizes what the colonials felt about 
the existence of a “legal sovereign” in the empire. Put 
more clearly and in practical terms by Samuel Adams, it 
was declared that, “By the charter of this province, the 
legislative power is the Governor, who is appointed by 
the King, the Council and the House of Representatives. 
The legislative of any commnowealth must be the supreme 
power.’’?* Following Locke’s lead as to the legal or gov- 


23 Cf. H. J. Laski, Problem of Sovereignty, Chs. II, V. 

24 Works, (Biglow Ed.), IV. 316. 

2 James Bryce, Studies in History and Jurisprudence, p. 505. 
26 A. V. Dicey, Law of the Constitution, (8th Ed. 1915), p. 425. 


at Ascites Phas ach to the Boston Gazette, 28 Oct., 1771, S. Adams, 
Works, Il. 


LIMITING AND DIVIDING SOVEREIGNTY 163 


ernmental sovereign, as opposed to the practical or political 
sovereign, there were as many sovereigns in the British 
Empire as there were constituent parts of it. There could 
_ hardly be anything very awe-inspiring about a sovereignty 
which was not only divisible, but divisible into so many 
pieces. As to its limitability, such a sovereign was 
merely the creature of society, limitable and changeable 
and even destructible at the will of society. The Jeffer- 
sonian view held that governments, legislatives, as Locke 
would have said, were merely agents “instituted’”?° or 
“framed’’29 among men, and not set irretrievably above 
men, as a power “unrestrained by laws.” On the con- 
trary, Jefferson came continually back to the proposition 
that the legal sovereign, as Bryce and Dicey, following the 
lead of Locke, would call it, was very much at the mercy 
of the people.?° 

But in the field of the practical or political sovereign, 
we have a more serious problem. Locke started with a 
state of nature, from which mankind emancipated itself 
by establishing, first, political society, which in turn insti- 
tuted government.2! This involved a surrender of such 
natural rights as the common good demanded should not 
be exercised irresponsibly by private individuals. But 
Locke’s confusion here of “community” and “govern- 
ment’ would warn one not to draw too specific a con- 
clusion as to how political society instituted government.3? 
Yet that government contained the sovereign power which, 
we have observed, Bryce and Dicey have rationalized as 
the de jure or legal sovereign. “In all cases whilst gov- 
ernment subsists the legislative is the supreme power.”3% 
From such a theory grew naturally the doctrine of Parlia- 
mentary supremacy. But despite this outspoken state- 
ment, Locke admitted that behind the government stood 
the community, at whose pleasure government existed. 


28 Declaration of Independence. 

29 Jefferson, Works, (Ford Ed.), IV. 475. 

® Jefferson, Works, (Ford Ed.), IV. 362-3, 465-7. 
Two Treatises on Government, Bk. II. secs. 95-9. 
2 Tbid., Secs. 95, 97. 

=a Tbid., sec. 150: 


f 


164 POLITICAL IDEAS AMERICAN REVOLUTION 


At this point we seem to have the whole American idea. 
But one must move cautiously. This community, or so- 
ciety, apparently never registered its will nor acted in its 
sovereign capacity except for the purpose of overthrowing 
a government and the institution of a new one, for “whilst 
government subsists, the legislative is the supreme power.” 
Yes, “the community may be said to be in this respect al- 
ways the supreme power, but not as considered under any 
form of government, because this power of the people can 
never take place until the government be dissolved.”34 It 
is not at all fair to say that Locke did not, upon occa- 
sion, distinguish society from government; he certainly 
did. But the thing he does seem to have difficulty in con- 
ceiving was an expression implying a manifestation of 
the social will independently of the will of a particular 
government and during the existence of a particular gov- 
ernment. The constitution of the “legislative” was the 
first and fundamental act of society, and this creation of 
society then became “the soul that gives form, life and 
unity to the commonwealth.”%> A government once 
made, its will is law until another government comes along 
and makes another law, and in each case the minority 
have no rights which the majority cannot in the last 
analysis invade. If a particular government be unrepre- 
sentative, during its tenure society must needs be dumb.?& 
Rousseau has little more to offer. Although in no 
sense can he be said to have been as influential on the 
thinkers of the American Revolution as was Locke, yet 
he is commonly thought of as representative of the school 
of thought which also embraces the Americans. He 
predicates a general will which dictates what the supreme 
power shall do. Slightly different, it will be observed, 
from Locke, who identified his sovereign with the supreme 
power rather than with the will which guided that power. 
But for our purposes the distinction is little more than 
academic. Sovereignty, “being nothing but the exercise 


* Two Treatises on Government, Bk. II. Sec. 149. 
% Tbid., Sec. 211. 
“6 Tbid., Sec: 212; 


LIMITING AND DIVIDING SOVEREIGNTY 165 


of the general will,”*" was a thing which Rousseau would 
have us differentiate from the “will of all.’88 “There is 
often a great deal of difference between the will of all and 
the general will; the latter regards only common interest, 
while the former has regard for private interests, and is 
merely the sum of particular wills, but take away these 
same wills, the pluses and minuses will cancel one another, 
and the general will remains as the sum of the differ- 
ences.’°® Hence it was easy to say that “the general will 
is always right and always tends to public advantage ; but 
it does not follow that the resolutions of the people have 
always the same rectitude.” All this leads directly to the 
conclusion, “as nature gives every man an absolute power 
over all his limbs, the social pact gives the body politic an 
absolute power over all its members, and it is this same 
power, which when directed by the general will bears, as 
I have said, the name of sovereignty.”4° Such a concep- 
tion of sovereignty would seem to be a thing which knows 
neither law nor limitation, for “It is admitted that what- 
ever part of his power, property and liberty each one 
alienates by the social compact, is only part of the whole 
of which the use is important to the community, but we 
must also admit that the sovereign alone is the judge of 
what is important.” Under these circumstances we cer- 
tainly do Rousseau no injustice by calling attention to his 
proposition that “It is contrary to the nature of the body 
politic for the sovereign to impose upon itself a law which 
it cannot transgress.”’4! 

The medizval theory left sovereignty above positive 
law, and it is difficult to see where either Locke or Rous- 
seau made very much of an advance upon that theory. 
True, the new popular sovereign was perhaps more demo- 
cratic than Hobbes’ sovereign. If Hobbes absorbed the 
government in the sovereign, one is tempted to concur that 
Locke and Rousseau, and particularly the latter, absorbed 


87 J. J. Rousseau, Le Contrat Social, (not published till 1762). 
Ss Tbid..) Bk. wl.) Chi I: } 
Tbrd:, LE) ait. 

# J. J. Rousseau, Le Contrat Social, II. iv. 

““Ibidy, i. vit or, TT. a 


166 POLITICAL IDEAS AMERICAN REVOLUTION 


the government in the people and left them as unrestrained 
by law as Bodin’s sovereign had been. Turning now to 
John Adams’ Dissertation on the Canon and Feudal 
Law,” we find one of the most searching sketches on the 
theory of politics which appeared in America in this pe- 
riod. It is not a complete statement of theory or a con- 
sistent and well rounded presentation. Rather is it a se- 
ries of penetrating comments which would furnish as 
much food for thought as many lengthy and didactic 
works which consume three or four times as much paper. 
In a sense it contains the answer to Sidney Smith’s query, 
“Who reads an American book?” ‘The answer is, “Eng- 
lishmen.”’4? Popular sovereignty, the sovereignty of the 
people, sovereignty resident in the people, the supreme 
power dwelling in the mass of the people, or whatever 
term anyone wishes to employ to express the concept of 
sovereignty held by the men of the Revolutionary period 
in America, was viewed here as the culmination of an age- 
long struggle in which that power was wrested by the 
masses from the classes. Had he lived in the nineteenth 
century, John Adams would probably have explained this 
as the “evolution” of sovereignty from the private pos- 
session of a priest or prince to the public possession of the 
co-contractors who composed society and instituted gov- 
ernment. At one time there had been a monarch with 
many rights and a people with many duties; now there 
was a monarch with many duties and people with many 
rights. Rightly or wrongly, he interpreted the medieval 
political thought as a dull thing in which the twin tyran- 
nies of priests and princes maintained the supreme power 
in given administrative areas, by force, fear and fiction. 
The modern age had shown people where the real weight 
in numbers, and hence the real force, lay, and it had re- 
moved their fear by destroying the fictions of canon and 
feudal superstition. “In the middle ages,’ says Mait- 


“Published in August, 1765, in the Boston Gazette. 


43 Reprinted in London and printed in book form in England twice 
before it was published as a book in America in 1783. John Adams, 
Works, III. 445. 


LIMITING AND DIVIDING SOVEREIGNTY 167 


land, “land law is the basis of all public law.’44 John 
Adams seems to have been on the track of some such 
thought in this essay, and in it he saw half the explana- 
_ tion of what he regarded as the tyranny of the middle 
ages. The other half of the explanation was to be found 
in the church and its canon law. This twin confederacy 
of the canon and feudal law exercised a temporal and 
spiritual tyranny which was, in fact, the “supreme power” 
over the people of the middle ages.4® The Reformation 
was simply an effort to loosen the shackles of this sover- 
eign. “It was this great struggle which peoples Amer- 
ica.”46 Not merely “Puritans” seeking religious freedom 
were they who settled America, but men who sought ref- 
uge from the oppressive European public law which was 
based upon land tenure, and which presumed that pri- 
marily one person “was vested with the propriety of all 
lands within the territory.’”4* How far this is a correct 
conclusion, or how far the Americans got away from these 
oppressive sovereigns, is a question into which it is not 
our province to enter. But they did think that they had 
emancipated themselves from the bonds of canon and 
feudal law, and the point which it is interesting to observe 
is that John Adams thought of these bonds in terms of 
systems of laws as well as in terms of persons.4® The 
feudal sovereigns were accompanied in his thought by the 
oppressive systems of law whereby that sovereignty was 
made manifest. To take the place of the old sovereigns 
and their old law what had the thought of colonial 
America to offer? They had to offer not only the sover- 
eign people, but the law of the Constitution. The Con- 
stitution was the articulate expression of the sovereign 
people which insured their liberty. This involved not only 
the setting up of government to secure the rights of man, 
but the enunciation of principles which conditioned human 
association. One of the chief of those conditions was, 

“EF. W. Maitland, Constitutional History of England, (1906), p. 38. 

#® John Adams, Works, III. 450. 

4 Ibid., III. 451. 


47 Tbid., III. 450. 
4 Essay on the British Constitution, John Adams, Works, III. 479. 


168 POLITICAL IDEAS AMERICAN REVOLUTION 


of course, the preservation of those natural rights which 
men did not surrender upon their entrance into political 
society. Now those rights, which the Constitution was 
designed to insure, form the connecting link between 
natural (divine) and positive (human) law in the thought 
of this period. The discussion at this point transcended 
the bounds of what is ordinarily called public law, and 
some of the keenest thinkers, like John Adams, Alexander 
Hamilton, and John Dickinson, are found associating the 
natural rights of men with both the British Constitution 
and divine law. The British Constitution is held to be 
not the origin, but the expression of preéxisting rights, 
emanating in the last analysis from what Hamilton called 
“an intelligent, superintending principle who is Govern- 
or and will be the final judge of the universe.”49 In some 
such sense as this must be understood Adams’ declaration 
that “British liberties are not the grants of princes or par- 
liaments, but original rights, conditions of original con- 
tracts, coequal with prerogative and coeval with govern- 
ment; that many of our rights are inherent and essential, 
agreed on as maxims and established as preliminaries even 
before a parliament existed.’’>° 

Supplementary to John Adams’ Dissertation, Hamil- 
ton’s replies to the Westchester Farmer carry the idea of 
a discoverable natural law (divine law) on to its applica- 
tion. He is prone to identify natural law with what he 
calls the spirit or genius of the British Constitution.®4 
The rights of men which exist under this natural law “are 
not to be rummaged for among old parchments or musty 
records. They are written as with a sunbeam, in the 
whole volume of human nature, by the hand of the di- 
vinity itself; and can never be erased or obscured by 
mortal power.” Hamilton believed that the law which 


49 The Farmer _Refuted; or a More Comprehensive and Impartial View 
of the Disputes Between Great Britain and the Colonies: [Alexander Ham- 
el (New York: Feb., 1775), Hamilton’s Works, (J. C. Hamilton Ed.), 


® John Adams, Works, III. 463. 


51 The Farmer Refuted; Hamilton’s Works, II. 80, 96. See also, Hamil- 
ton, Full Vindication of the Measures of the Continental Congress from 
the Calumnies of their Enemies, (New York: 1774), Works, II. 4. 


LIMITING AND DIVIDING SOVEREIGNTY 169 


secured these rights was a thing which resisted and re- 
strained men while still in a state of nature and that upon 
their entry into political society and their institution of 
government, it became a part of the constitution. He 
- pilloried the Westchester Farmer as a disciple of Hobbes, 
ranged himself on the side of Locke, and applied as prin- 
ciples of public law, doctrines which he believed subordi- 
nated all men, whether in society or out, to those prin- 
e1ples.° Y 

The final link in the chain connecting natural law with ~~ 
the law of the Constitution is supplied by Samuel Adams’ 
Natural Rights of the Colonists.®*? “Just and true liberty, 
equal and impartial liberty, in matters spiritual and tem- 
poral, is a thing that all men are clearly entitled to by the 
eternal and immutable laws of God and nature, as well as 
by the law of nations, and all well grounded municipal 
laws, which must have their foundation in the former.’ 
How natural law gets adopted into the British Constitution 
is explained by his conception of the nature of Magna 
Carta, which he regards as a “constrained declaration or 
proclamation and promulgation in the name of King, 
Lords and Commons of the sense the latter had of their 
original, inherent, indefeasible natural rights, as also those 
of free citizens equally perdurable with the other.’’5> 
The point where Samuel Adams seems to advance on Locke yy 
or Rousseau is in pointing out that these natural rights 
are not held at the whim of the majority, but are the per- | 
manent possession of men in society. “In short, it is the 
greatest absurdity to suppose it in the power of one or 
any number of men, at the entering into society to re- 
nounce their essential natural rights, or the means of pre- 
serving those rights, when the grand end of civil govern- 
ment, from the very nature of its institution, is for the 
support, the protection and defense of those very rights; 
the principal upon which, as is before observed, are Life, 
Liberty and Property. If men through fear, fraud or 

2 Hamilton, Works, II. 43. 

53 Wells, Life and Public Services of Samuel Adams, I. 502-7. 


Sei bide sl 502 
meMibides) le o05s 


J 


170 POLITICAL IDEAS AMERICAN REVOLUTION 


mistake, should in terms renounce, or give up any essential 
natural right, the eternal law of reason, the grand end of 
society, will absolutely vacate such renunciation.”5¢ 
These ideas merit some consideration as the reappearance 
in another form of concepts which foreshadow the Amer- 
ican doctrine of constitutional law. Here, indeed, ap- 
plied on a wider scale, we have the idea that there is a law 
which limits the actions of men acting collectively. In 
the former discussion, it was apparent that man acting 

collectively in government was restrained by law; now 
~ Samuel Adams would lay down the proposition that man 
acting collectively even in society is equally restrained by 
law. This time the law was not such an easily discover- 
able thing, indeed, one can hardly be blamed at first glance 
for accusing the thinker of confusing natural and positive 
law. But the discovery of natural law through the me- 
diumship of the constitution is an attempt to answer even 
this. Where now lies sovereignty ? 

Before answering that, we must recur to Wilson and 
observe the thought of this most enthusiastic exponent of 
popular sovereignty. His “Lecture on Municipal Law” 
attacks the problem of sovereignty directly. The “cele- 
brated Grotius,” he tells us, “introduces what he says con- 
cerning the interesting doctrine of sovereignty with the 
following information: ‘Learned men of our age, each of 
them handling the argument rather according to the pres- 
ent interest of the affairs of his country, than according 
to truth, have greatly perplexed that which in itself is not 
very clear.’ In this the learned men of every other age 
have resembled those of the age of Grotius.’”®* “Indeed 
it is astonishing in what intricate mazes politicians and 
philosophers have bewildered themselves upon this subject. 
Systems have been formed upon systems, all fleeting be- 
cause unfounded. Sovereignty has sometimes been 
viewed as a star, which eluded our investigation by its 
immeasurable height; sometimes has been considered as 
a sun, which could not be distinctly seen by reason of its 


55 Wells, I. 504. 
587 Wilson, Works, I. 231; De Jure Belli ac Pacis, I. iii. 5. 


LIMITING AND DIVIDING SOVEREIGNTY 171 


insufferable splendor. Always magnificent, always inter- 
esting to mankind, it has become alternately their blessing 
and their curse. Its origin has often been attempted to 
be traced. The great and the wise have embarked in the 
undertaking; though seldom, it must be owned, with the 
spirit of just inquiry; or in the direction which leads to 
important discovery. The source of sovereignty was still 
concealed beyond some impenetrable mystery ; and because 
it was concealed, philosophers and politicians in this in- 
stance have gravely taught, what in others the poets have 
fondly fabled, that it must be something more than hu- 
man; it was impiously asserted to be divine. Lately the 
inquiry has been recommenced with a different spirit and 
in a new direction; and although the discovery is nothing 
very astonishing, yet the discovery of something very use- 
ful and true has been the result. The dread and redoubt- 
able sovereign when traced to his ultimate and genuine 
source has been found as he ought to have been found, in 
the free and independent man. This truth, so simple and 
so natural, and yet so neglected or despised, may be ap- 
preciated as the first and fundamental principle in the 
science of government.”°8 What “meaning had such a 
pronouncement in the words of James Wilson that per- 
haps it might not have had in the words of Locke? 
True, Wilson observed, “Mr. Locke and other theoretical 
writers have held that there remains still inherent in the 
people a supreme power to remove or alter the legislative, 
when they find the legislative act contrary to the trust im- 
posed in them; for when such trust is abused it is thereby 
forfeited, and devolves upon those who gave it.’ 
Though whatever Mr. Locke and the theoretical writers 
might maintain, Blackstone could still reply, “But how- 
ever just the conclusion may be in theory, we cannot prac- 
tically adopt it, nor take any legal steps for carrying it 
into execution under any dispensation of government now 
existing.”®° But Wilson was of a nation that did “prac- 


58 Wilson, Works, I. 25. 
59 Locke, Two Treatises on Government, II. Secs. 149, 227. 
7. Bl. Com: 162. 


172 POLITICAL IDEAS AMERICAN REVOLUTION 


tically adopt it,” and take “legal steps for carrying into 
execution” the sovereignty of the people as opposed to the 
sovereignty of government. He took an active part in the 
convention which framed the government wherein much 
of the Lockeian theory became a legal practice.6t He not 
only joined Samuel Adams in denying the sovereignty of 
a particular government at a particular time, he denied the 
sovereignty of any government at any time. 

Wilson’s views on this subject were the same as those 
held by one of the best known political scientists in con- 
temporary England, James Burgh. This author has 
shared the fate of Camden in the oblivion to which Eng- 
lish writers have consigned him. Yet his “Political Dis- 
quisitions”’ were in their day regarded as a mine of infor- 
mation and inspiration by those Englishmen who took the 
Americans seriously and insisted that if Boston was going 
to talk about representation so should Manchester and the 
other victims of the rotten borough system. From the 
publication of his most notable work till 1832 Burgh’s in- 
fluence was felt and acknowledged. He sympathized en- 
tirely with the Americans in their position on taxation ;®? 
he quoted Bolingbroke to the effect that “there is some- 
thing which Parliament cannot do,’®? and, as to Black- 
stone and sovereignty, he remarked, “The truth is, there- 
fore, that the learned judge has placed sovereignty wrong, 
viz., in the government; whereas it should have been 
placed in the people, next and immediately after God.”64 

One should observe Blackstone’s language carefully in 
his statement, ‘How the several forms of government we 
now see on earth actually began is a matter of great un- 
certainty, and has occasioned infinite disputes. It is not 
my business or intention to enter into any of them. How- 
ever they began, or by what right soever they subsist, there 
is and must be in all of them a supreme, irresistible, abso- 


6 Farrand, Records of the Federal Convention, II. 73, ct ge McMaster 
and Stone, Pennsylvania and the Federal Constitution, p. 354. 


James Burgh, Political Disquisitions, or An Ea into Public Errors, 
Defects and Abuses, (London: 1774), 3 Vols., II. 274- 


8 Tbid., III. 442. 
64 Tbid., III. 278. 


LIMITING AND DIVIDING SOVEREIGNTY 173 


lute and uncontrolled power, in which the jura summi 
imperit, or rights of sovereignty, reside.”65 Here Black- 
stone was talking about the sovereignty of the government, 
or what has been called “legal” sovereignty, and he found 
it in Parliament.6® The Massachusetts proclamation of 
1776 had employed similar language and reached a totally 
different conclusion: “It is a maxim that in every govern- 
ment there must exist somewhere a supreme sovereign, 
absolute and uncontrolled power; but this power resides 
always in the body of the people, and it can never be dele- 
gated to one man or to a few, the Great Creator having 
never given to men a right to vest others with authority 
over them unlimited either in duration or degree.’6* 
However representative the Massachusetts proclamation 
might be, it is at least assailable. Blackstone, thinking of 
the legal sovereign, placed it in the law-making body. 
The Massachusetts proclamation, thinking of the same 
thing, had then confused it with political sovereignty. 
But Jates Wilson’s lecture on municipal law subjects 
the Blackstone doctrine to an interesting analysis in which 
he uncovers the American doctrine. Both Blackstone and 
the Massachusetts proclamation had said that supreme 
power must reside somewhere in government. Wilson 
said, “I agree with Blackstone that supreme power must 
reside somewhere in the state.’ Now Blackstone had said 
not state, but government. For the rest the lecture on 
municipal law is not so much a valid attack on the Com- 
mentator as it is a clear statement of the position of the 
Americans. Legal sovereignty simply was not at all; 
there was no such thing. Political sovereignty was resi- 
dent in all the people and by definition could not possibly 
be the “absolute, uncontrolled, unlimited and indivisible” 
thing which appears in the books from Bodin to Burgess. 
In fact what the philosophers of the American Revolu- 
tion did with sovereignty was just this: they scrapped it, 
as far as the ordinary meaning is concerned. The suc- 


6 1 Bl. Com. 48-9. 
1 Bl. Com. 51. 
6 Force, American Archives, 4th. Ser., IV. 833. 


174. POLITICAL IDEAS AMERICAN REVOLUTION 


cession of steps in the philosophy of the Revolution was 
something like this: First, men got together in society, 
then society formed a government. Now, said the Euro- 
peans, from Puffendorf to Blackstone, we are ready to 
take the third step and confer sovereignty on some- 
one. Wilson asks, why take the third step? “I see 
no necessity for it, I see no propriety in it; it is de- 
rogatory in my humble judgment from the general prin- 
ciples of legitimate sovereignty, and inconsistent with 
the best theory and the best exercise, too, of supreme 
power.’68 Now if sovereignty was a power “unre- 
strained by laws,’ what was legitimate sovereignty? 
Wilson’s theory of the relationship of government to so- 
ciety throws some light on this. “By the term constitu- 
tion, I mean that supreme law, made or ratified by those 
in whom the sovereign power in the state resides, which 
prescribes the manner according to which the state wills 
that the government should be instituted and adminis- 
tered. From this constitution the government derives 
its power, and by this constitution the power of the 
government must be directed and controlled; of this 
constitution no alteration can be made by the govern- 
ment, because such alteration would destroy the foun- 
dation of its own authority.”®9 In other words, the state, 
or society politically organized, was not an entity with 
a separable existence from the society which composed 
it. Hence that later creation which conferred the sov- 
ereignty of the people upon the state was what Wilson 
would have regarded as “derogatory from the genuine 
principles of legitimate sovereignty.” Indeed, the eight- 
eenth century with its doctrine of the rights of man upon 
which government could not trespass could hardly have 
thought otherwise. 

Perhaps it is not unfair to say that the Bodin-Burgess 
kind of sovereignty was, as far as the eighteenth century 
was concerned, rendered innocuous and relatively mean- 
ingless. The “active principle” of sovereignty, that is, 


© Wilson, Works, I. 185-8. 
® Wilson, Works, I. 417, 


LIMITING AND DIVIDING SOVEREIGNTY 175 


government, far from being “unrestrained by laws,” was 
definitely harnessed by the law of the constitution. The 
passive element, the electorate, simply absorbed sover- 
eignty, yet even they were limited by those aspects of 
fatural law which were embodied in the law of the Con- 
stitution. If society acted “ultra vires” its action was, in 
the words of Samuel Adams, “‘vacated.” 

x What, then, were the theory of the state and the doc- 
trine of sovereignty which the thinkers of the American 
Revolution had to offer? The answer, it seems, is some- 
thing like this: They had no theory of the state. They 
had a theory of society and a theory of government, and 
a theory of the relationship of the one to the other. But 
of the state in the modern sense, they knew little. Those 
who have followed the theories on into the next century 
show how, instead of the sovereignty of the people taking 
possession of the state, the people surrendered sovereignty 
to the state.*° Whether one large element in the nine- 
teenth century thought may not be a compromise between 
democracy and nationalism, is a question which it would 
be difficult to answer. Being willing to discover sover- 
eignty in the people, it was not necessary for the men of 
the Revolution to compromise halfway and erect a semi- 
metaphysical organismic entity called the state and endow 
it with sovereignty. Perhaps their thought is barren 
without that element which the modern age has so in- 
dustriously tried to isolate. But their ideas enabled them 
to avoid the snares with which the modern world has asso- 
ciated the idea of sovereignty in its third great sense, that 
of external sovereignty. Willing as they were to remain 
within the circle of the Britannic Commonwealth, while 
being in effect and in name free and independent states, 
the problem of external sovereignty had no terrors for 
them. As to their solution of the doctrine of sovereignty 
in its internal sense, there is an interesting clue in Mait- 
land wherein he discusses the claimants to sovereignty in 


7 “With the reaction against the eighteenth century political theory came 
the development of a doctrine of the organic and personal nature of the 
state, which was impossible under the dominance of the revolutionary 
ideas.” Merriam, Hist. of Sovereignty etc., p. 90. 


176 POLITICAL IDEAS AMERICAN REVOLUTION 


the time of James I.“ It will be remembered that atten- 
tion has been called to the fact that this was the period in 
which the English law was being transplanted across the 
Atlantic. Maitland reckons with Coke’s doctrine of the 
supremacy of the law over Parliament. It will also be 
remembered that Coke’s doctrine exercised considerable 
influence in shaping the American doctrine of constitu- 
tional law, that there is no will of government above the 
law. The historian epitomizes Coke’s doctrine by calling 
it the “sovereignty of the law,” and then proceeds to il- 
lustrate how unworkable it is and to note its early demise 
in England. 

Strictly speaking, the theory of sovereignty consciously” 
dominant with the thinkers of the American Revolution 
was the sovereignty of the people. But James Wilson’s 
ideas on this head were probably clearer than those of any 
of his contemporaries, and one cannot go very far into 
Wilson’s writings without becoming acutely aware of the 
fact that the “sovereignty of the people” as he understood 
it, was a very different thing from the apparently similar 
theory worked out in the French Revolution. French 
thinkers, after worshipping for centuries the theory of 
monarchial sovereignty, suddenly discovered that by a 
simple verbal change they could substitute the nation for 
the king and blandly call themselves democratic because 
they now worshipped the “sovereignty of the nation.’’'? 
But let none be confused by the analogy with American 
thought. Wilson’s sovereignty of the people was not the 
sovereignty of the nation. It was the sovereignty of the 
people, and the people might act in the local, the national, 
or the international capacity, as far as he was concerned.7# 


1 F. W. Maitland, Constitutional History of England, pp. 297-301. 


Declaration of the Rights of Man, Article III. Duguit, Law in the 
Modern State, pp. 10-15. 


7% This is also the opinion of my friend, Mr. B. A. Konkle, who has 
spent many years research on his forthcoming Life and Writings of James 
Wilson. The concept is a simple one: if the same people can be citizens 
of North Carolina, and citizens of the United States, without destroying 
the identity of either North Carolina or the United States, why cannot 
they with equal ease become citizens of a more inclusive Commonwealth 
of Nations, as indeed, a man today can be at one and the same time a 
citizen of New South Wales, a citizen of the Commonwealth of Australia, 
and a citizen of the Britannic Commonwealth. Superadding on this a 


LIMITING AND DIVIDING SOVEREIGNTY 177 


Wilson’s friend, James Iredell, had put this more clearly 
than anyone else in discussing the nature of the Britannic 
Commonwealth in 1774. He insisted that the question of 
conflicting jurisdictions should not arise, that the same 
people might be citizens of North Carolina, or citizens of 
the Britannic Commonwealth, and that in fact there was 
no need of worrying about the ever-present bugaboo of 
the imperium in wmperio. Said he, there might be “sev- 
eral distinct and independent legislatures, each engaged 
within a separate scale, and employed about different ob- 
jects.” The American Federal system today as well as 
the federal systems in the self-governing dominions of 
the Britannic Commonwealth, are conclusive demonstra- 
tions of the truth of what Wilson and Iredell were talk- 
ing about.*4 

But after all, the sovereignty of the people of American 
political thought could only manifest itself when the peo- 
ple spoke in their constitutional capacity, i.e., in the forma- 
tion and amendment of their constitution of government. 
Only when the people make constitutional law is the sov-- 
ereignty of the people really a thing of which one can 
practically take cognizance. This enables us once more 
to inquire whether it may not be worth while to see what 
appears when we examine the American theory of sover- 
eignty as being sovereignty resident in law. 

The logical mind at once sees a contradiction here, or 
at least the confusion of natural and positive law. Were 
not Americans placing a semi-human, semi-divine law 
above the power of persons and states? Was such a law 
really ascertainable and really enforceable in human tri- 
bunals? Locke had said that the supreme power of the 
people could not manifest itself without the dissolution of 


League, or Association, or Conference of Nations would in nowise destroy 
the identity of any of the other political units. Indeed, the trend is all 
the other way, for the self-governing dominions tend to assert more em- 
phatically their individuality, and more “colonies” are demanding the 


“dominion status.’ Surely this product of American thought is a con- 
tribution to our an ternaoca olitical ee which is not to be despised. 
Vid. Wilson, W orks, 333, Passim. G. Wells, Outline of History, 


II. 584, ie., Ch.: The Unification of Te Worla.” 


74 McRee, ie and Correspondence of James Iredell, I. 219; Wilson, 
Works, I. 25, 185-8 


178 POLITICAL IDEAS AMERICAN REVOLUTION 


government, but the Americans demonstrated that positive 
law could register the will of society independently of 
government while government was in being and opera- 
tion. Rousseau had denied that the body politic could 
restrain itself with laws which it could not transgress. 
But the Americans appealed to a law, which they seemed 
to think valid for political purposes and suitable for po- 
litical usage, which was in fact superior to political society. 
As Hamilton had said, there are some laws, which are 
pertinent in political discussion, which the hand of mor- 
tals can not erase. James Wilson was perfectly right 
in stressing the sovereignty of the people, because he rep- 
resented the reaction against the legal sovereignty of 
Parliament, just as Paine represented the reaction against 
the personal sovereignty of the hereditary monarch. But 
the sovereignty of the people explains only a part of the 
thought of the Revolution and gives an incomplete picture 
of it. Wilson clearly differentiated natural and positive 
law, but he did not distinguish their respective fields of 
jurisdiction. In this perhaps lies the explanation of the 
apparent confusion of the two. His course of lectures at 
the law school opens with a lecture on “Natural Law,” a 
thing which would be strangely out of place in the mod- 
ern legal curriculum, being relegated to the departments 
of Philosophy and Ethics. 

Now it is to be remembered that in legal thought, down 
even to our own day, the only branch of law which is 
acknowledged to be above states and nations is what the 
eighteenth century called the “Law of Nations” and what 
the modern world calls “International Law.” In the 
eighteenth century, as has been observed in the chapter 
on Wilson’s legal theories, this law was still held by many 
to be a division of natural, or divine law. The explana- 
tion of this is to be gleaned from Gierke’s remark that 
“Since the constituted power in the Church and in the 
State had not created the law of nations, but received it, 
it was therefore held to partake of the immutability and 
sanctity of natural law.”7> Might it not very well be that 


™ Gierke, op. Cit., p. 76. 


LIMITING AND DIVIDING SOVEREIGNTY 179 


the interpreters of the American Revolution, in their ap- 
parent confusion of natural and positive law, of the law of 
ent-confusion-of-natural and~ positive law, of the law of 
the constitution with rights secured under natural law, 
were actually groping after the idea of a law which was 
not created by states, but which society had received and 
having found good by experience had bound itself to ob- 
serve by its own consent? Such a law was so very real to 
the Americans that they proceeded in a small way to apply 
it in connection with their own constitutional law, a law 
which transcended governments. Viewed from this stand- 
- point, then, it is probably not wholly wrong to characterize 
the American doctrine of sovereignty as being, in one 
sense, a doctrine of the sovereignty of law. There is 
nothing new or startling about such a conclusion; indeed 
Aristotle seems to have placed the sovereignty of law 
above every form of personal sovereignty.”® 
If the question were asked then, and it might not im- 
properly be asked, from what source this law is “received,”’ 
the answer is that the thinkers of the Revolution were not 
so clear on this point. But is it at all necessary that they 
should be clear? ‘The question of divine revelation is one 
upon which the learned doctors in temple have disagreed, 
and it would be asking a good deal of the practical poli- 
ticians in the town meeting that they settle it. The fact 
that the political engineers got as far as being able to con- 
ceive a law by which all men, within the state or as a 
state (understanding a state as a portion of society), were 
in fact bound is a contribution to political thought of no 
mean dimensions. Perhaps no greater contribution has 
been made to the problem of mediating between the idea 
of an absolutely independent and an absolutely subject 
state than that idea which would recognize the existence 
of a sovereign law. Such a sovereign would limit the in- 
dependence of the one and prevent tyranny, as it would 
protect the other in its dependency. Such an idea would 
lay the foundation for rules enforceable in courts which 


7 Aristotle, Politics, Bk, III. xvi. 5. Cf. W. A. Dunning, Political 
Theories, Ancient and Medieval, p. 71. 


180 POLITICAL IDEAS AMERICAN REVOLUTION 


would relieve the subject state from the position of being 
absolutely at the mercy of the state which had under- 
taken to include such subject state in its “protectorate,” or 
“sphere of influence,” or “mandate,” or whatever term 
may be used to express the tutelage of an advanced over 
a backward state. 

Perhaps, too, it is no accident which led Stephen Hop- 
kins to employ the expression, “Sovereignty of the British 
Constitution,” in his effort to find a theory which would 
fit in with the concept of an empire of semi-independent 
states.77 So, too, perhaps Samuel Adams really meant 
what he said in the Circular Letter, “That the Constitution 
ascertains and limits both Sovereignty and allegiance.”*® 
Certainly this expresses exactly the nature of that law of 
the British Constitution to which the colonists appealed in 
their efforts to make clear their position. Within any 
given state, the Americans believed that as between per- 
sons, sovereignty was resident in the people, and not in 
kings or parliaments. But this is not the whole story, 
for if that given state was to aspire to the name of “re- 
public,’ then it must primarily be what Harrington had 
taught John Adams to think of as “an empire of laws and 
not of men.”7® If this formula could, in turn, claim to 
be a political principle, then its application was certainly 
not to be limited by the artificial frontiers of either human 
or physiographical construction, for it is hardly a thing 
which takes cognizance of frontiers. In an “empire of 
laws and not of men,” principle, not people, was sover- 
eign, by definition. 

Under such an analysis of sovereignty, the supreme 
limitations upon human action are found resident in a set 
of rules which, for want of a better term, we denominate 
as law. The law found its practical expression in consti- 
tutions and charters, rules by which groups in the political 
system were bound by quasi-contractual obligations. As 
has been observed, this was, in essence, exactly what 


™ Rhode Island Records, VI. 427. 


ae pe Cineulae Letter of Massachusetts Bay; Almon, Prior Documents, 
pp- -5. 


7 John Adams, Works, IV. 194. 


4 
\ 


LIMITING AND DIVIDING SOVEREIGNTY 181 


actually existed in the case of corporations which have 
played such a large part in the formation of the Britannic 
Empire-Commonwealth. Charters, sets of rules by which 
authority was delegated to Merchant Adventurers, Vir- 
ginia Companies, or East India Companies, yet in which 
jurisdiction was delimited; charters rationalized sover- 
eignty by the subjection of all groups to law. The ques- 
tion of devising some theory of international codperation, 
then, if referred to the students of the Science of Com- 
monwealths and Corporations of the eighteenth century, 
discovers this answer: all groups must understand the 
theory of law by consent, and having understood it, must 
agree to sacrifice independence at the dictate of that law. 

To approximate in such a law the principles of a higher 
spiritual law is a task which may, then, perhaps, be ap- 
proached. But until the groups admit the existence and 
validity of any law at all, there is little use for exploring 
the higher realms. In would, indeed, be highly desirable 
to have all group problems solved by the principle which 
Hamilton called God, but until the groups can demon- 
strate their capacity to be faithful in the unrighteous 
mammon, they can hardly expect to have true riches com- 
mitted to their trusteeship. As John Adams pointed out, 
there is no use advising people to depend for their safety, 
liberty and security upon hopes and blessings which we 
can hardly expect will fall to their lot. Hence the advisa- 
bility of “some political institutions” upon which man may 
lean in the period of his unenlightenment. 


CHAPTER IX 
THE RELATION TO MODERN THOUGHT 


Few writers on politics seem satisfied until they have 
made the trip to Aristotle and back. In consideration of 
the vast difference between his day and this of wireless 
telegraphy and electrical motive force, it is a matter of 
some interest that principles which he enunciated have a 
relevancy today. But they have had that relevancy in 
many another day as well, and perhaps it is not going too 
far to say that what we have been observing here is not 
the creation of new ideas but merely the revival of these 
older ones. One may, as has been noted, trace Otis’ pro- 
nouncement that an act of Parliament contrary to the Con- 
stitution is void, back to Vattel. But with equal pro- 
priety it might be traced to William of Ockham’s doctrine 
that the commands of the sovereign “ultra vires statuen- 
tis” are also null. Similarly one might say of the the- 
ories of John Locke and James Wilson, which discovered 
sovereignty in the people, that here is only another and 
yet another recurrence of the thought which Marsiglio of 
Padua expressed when he pointed out that the will of the 
people is the efficient cause of the law.? It is not so much 
with the origin of ideas that we are concerned, as with 
their emergence and re-emergence at some peculiarly ap- 
propriate moment in history. In the midst of the Ameri- 
can reaction against the treaty of Versailles in 1919, one 
American senator to whom the example of the British 
imperial organization and its precedents had been cited, 
became so impatient that he said frankly he was tired of 
hearing about Australia, that the first families of Australia 
were the descendants of convicts any way, and hence he 
declined to take advice from Australia, preferring to fol- 


1 William of Ockham (Occam), Dial. III: tr. 2; 1, 2; ch. 20, 26, 28; cf. 
H. J. Laski, Foundations of Sovereignty, p. 9. 


2 Marsiglio of Padua, Defensor Pacis, Bk. I: c. xii. 


[182] 


THE RELATION TO MODERN THOUGHT 183 


low the traditions of his own country. Now since this 
was just the same reason that Dr. Johnson had given for 
declining to respect the Americans in 1774, we can see 
that the Tory, as well as the Whig ideas are emerging 
and re- emerging, and neither truth nor error is the ex- 
clusive possession of any particular generation. 

So to pass upon the political theories of the American 
Revolution the historical judgment that they exhibit no 
originality is hardly profound. But to discover that a 
people exhibited a familiarity with an important principle 
at an important time is a matter of some historic signifi- 
cance. Even if we cannot credit the American thinkers 
with originating certain political ideas, we are probably 
paying them a higher compliment by saying that at a criti- 
cal time they did display an acquaintance with those ideas 
which has had some remarkable results. Among the doc- 
trines of which they showed some appreciation was that 
involved in the distinction between society and govern- 
ment. Johnson’s statement that in sovereignty there were 
no gradations was followed with the enunciations, “There 
may be limited royalty, there may be limited consulship, 
but there can be no limited government.” In explanation 
he went on to say, “There must be in every society some 
power or other from which there is no appeal.” Now it 
will readily be observed that the second of those statements 
has no necessary connection with the first, because as a 
fact government and society were two totally distinct 
things. This is a principle which transcends in importance 
the whole controversy attendant upon and incident to the 
application of the theory of natural rights. To illustrate: 
_It is sometimes taken for granted that the eighteenth cen- 
tury natural rights school played into the hands of the 
laissez-faire theorists and thus worked untold social in- 
justice in the name of the protection of the natural rights 
of factory and mine owners. However this may be, one 
should not confuse a fundamental principle with its ap- 
plication in a particular age. Aristotle’s principles may 


3 Senator L. Y. Sherman (Il) Cong. Rec. 66 Cong. ist Sess. 8010. 
* Taxation No Tyranny. 


184 POLITICAL IDEAS AMERICAN REVOLUTION 


be as true today as they were two thousand years ago, 
but no one would be so foolish as to apply them today as 
though the modern world were identical with Aristotle’s. 
Similarly with Jeffersonian principles, which if applied in 
eighteenth century agricultural Virginia might have re- 
sulted in a certain distrust of the state and state action, yet 
in twentieth century industrial Massachusetts might have 
a totally different application. If, in the eighteenth cen- 
tury, society willed. laissez-faire, it might equally today 
under the principles of the American Revolution, will 
socialism, or communism, or sovietism, as far as the fun- 
damental principle is concerned. So it is with that con- 
vention of the constitution which is known as the judicial 
veto, the power of the courts to declare a law unconsti- 
tutional. If it be true, as some allege, that it has been 
converted into an instrument for blocking social legisla- 
tion, that is unfortunate, but it is no necessary consequence 
of the principle that there shall be no government above 
the law. The cure is no concern of political philosophy, 
but merely one of administration. 

In laying down the distinction between society and gov- 
ernment, the thinkers of the Revolution do not rigidly ad- 
here to the distinction between the state and the govern- 
ment which the more modern political scientists urge. But 
what President Wilson calls the “plain people everywhere” 
have a most annoying faculty of confusing state and gov- 
ernment, largely because the state is known to most people 
only through the action of the government. The “society 
vs. government’’ distinction has at least the merit of being 
clear. The doctrine of the responsibility of government 
to society is likely to run afoul of prevalent theories about 
the supremacy, the uncontrollability, and sovereignty of 
the state. But it is just because the doctrine of the sov- 
ereignty of the state is now being subjected to some very 
searching scrutiny that the thought of the American Revo- 
lution seems peculiarly pertinent. Religious groups and 
labor groups seem to be derogating from the supremacy of 
the state from within; other states, international law, and 
leagues of nations seem to derogate from the supremacy 


THE RELATION TO MODERN THOUGHT 185 


of the state from without ; where, indeed, is now the sov- 
eheienty Of thelstater 
“~The answer to that question involves yet another fun-_ 
damental idea which reappeared in the thought of the | 
American Revolution, namely, the principle of divided 
authority, which is the essence of federalism. It is quite 
immaterial whether that be a logical thing or not; it need 
only be workable. Only the logical mind worries itself 
with whether there is being created an imperium in im- 
perio. In the pre-Revolutionary discussions one finds 
again and again the Englishman saying, “You cannot draw 
any line between absolute dependence and absolute inde- 
pendence.” “Cannot” is notoriously a bad premise. It is 
so often the herald of the preacher of the doctrine of 
standing still. Perhaps it is not entirely unfair to suggest 
that by cutting loose from that doctrine the thinkers of the 
American Revolution were on the track of the new doc- 
trine of semi-independence in a league of states. Ais 
It has been my aim to show here that the best mentali- 
ties of the old British Empire were working on the prob- 
lem of bringing the political machinery of the empire into 
a better adjustment with the conditions which did in fact 
exist in the last half of the eighteenth century. (Chapter 
II). What result was produced by these efforts in the 
way of practical suggestions fall under the three heads of 
theories of colonial dependency, theories of imperial fed- 
eration, (Chapter III) and theories of imperial partner- 
ship (Chapter IV). The possibilities of the last named 
theories are of much greater consequence in the twentieth 
century, both as regards British imperial and as regards 
international politics, and so it seems that the thought of a 
representative “Britannic” rather than “British” thinker 
is worth analysis (Chapter V).® All this made certain 
very definite contributions to political theory, and espe- 
cially to that important branch of political thought per- 


5 See H. J. Laski, The Problem of Sovereignty, ch. II-V, and his Author- 
ity in the Modern State, ch. I. 
®Sir R. Jebb’s useful distinction between the term embracing the insular 
ond the term embracing the world interests of Britain. Vid. his Britannic 
uestion. 


186 POLITICAL IDEAS AMERICAN REVOLUTION 


taining to international relations. I have sought to point 
out that the Britannic laboratory disclosed the principle 
for which so many international publicists are still grop- 
ing, namely, that governments are subject to law. (Chap- 
ter V1). This principle, however, must be jargon, unless 
it is clearly understood that what the statesmen of the 


American Revolution understood by “law” was as dif- 


ferent from John Austin’s theory as day is from night. 
(Chapter VIII). All this involves the theme which 
must hover in the background of all our group ‘think- 
ing, and that is the question of sovereignty. I have 
therefore sought to show how the thinkers of the Revo- 
lutionary period met that issue. One might properly feel 
reluctant to deal with this topic at all, because its treat- 
ment presupposes a greater mental equipment than either 
the average reader or the average writer possesses. It 
is, however, just as Maitland pointed out, because Eng- 
lishmen have been unwilling to, or unable to deal with this 
subject, that there is in their history the tragic chapter of 
Ireland. It is also, as a more recent writer has pointed 
out, this same unwillingness and inability which plague 
international politics, so that Mr. G. L. Beer has not 
scrupled to remark that “the stern obstacle to the political 
organization of the world is the sovereignty of the state.” 

The original demands, if we may use that expression, of 
the Revolutionary Americans did not insist upon absolute 
independence and a separate membership in the family of 
nations.* All they asked was that their identity be not 
lost in that of England. It is well to remember that when 
the first and second Continental Congresses met, their ideal 
was not a complete separation; perhaps this will aid one 


7“But if we are all one dominion, or, as I understand him, members of 
one state, tho’ so remotely situated, the kingdom from the colonies, as 
we cannot all partake of the rights of the supreme legislature why may not 
this ‘irresistible, absolute, uncontrouled’ and controuling ‘authority in 
which the jura summi imperii or rights of government reside’ be established 
in America or in Ireland, as well as in Britain? Is there anything in na- 
ture, or has Ireland or America consented that the part of this one dominion 
called Britain shall be thus distinguished? Or are we to infer her author- 
ity from her power? Let him view the kingdom and the colonies in an- 
other light, and see whether there will be a solecism in considering them 
as more dominions than one, or separate states.” eho Adams as Candi- 
dus to the Boston Gazette, 20 Jan., 1772; Works, II, 321 


THE RELATION TO MODERN THOUGHT 187 


to rid himself of that halo of political divinity with which 
we are wont to surround the ideas of independence and 
the sovereign state. When a given political form can not 
be made to respond to the demands of an economic situa- 
tion, it is not always the economic situation which is at 
fault, or which will be changed. The separate economic 
identity of the American colonies was a fact in the last 
half of the eighteenth century, and the empire was broken 
by its own rigidity. The economic interdependence of na- 
tions is a fait accompli today; shall nations continue to 
break themselves because of the inelastic character of 
their so-called sovereignty ? ; 

But, as has been observed, the new historian of the fed- 
eral idea will be called upon to tell some other stories and 
take account of some other forces than those included un- 
der the head of past politics. History may be past poli- 
tics, but it is several other things as well. For example, 
there may be numerous examples of federalistic systems 
in the world, but the historian will be called upon to dis- 
criminate between those in which authority has been di- 
vided and distributed to secure harmony and those in 
which it has been divided so as to secure more easy eco- 
nomic exploitation. Where in the Britannic Common- 
wealth has the principle of divided authority meant free- 
dom, and where has it meant slavery? Among what other 
groups than purely political ones is authority to be further 
distributed? Will the reaction against the state find ex- 
pression in the recrudescence of the eighteenth century 
natural rights theory,’ or in newer theories of groups and’ 
their rights ?? 

It is not to be supposed that the substitution of one word 
for another ever worked a miracle in human affairs. But 
a growing understanding which reflects itself in a change 
of terminology may be a very interesting phenomenon. 
It is pretty obvious that for some time past interstate rela- 
tionships have been getting away from the vocabulary of 
the political scientist. People still talk blandly about free 


8 See T. Baty’s interesting article, 33 Harv. Law Rev., 358. 
®E. Barker, op. cit., 175 ff. 


188 POLITICAL IDEAS AMERICAN REVOLUTION 


and independent states without stopping to inquire 
whether in fact there is any such thing. Britannic states- 
men use practically the same language when speaking of 
the self-governing dominions as Americans use when 
speaking of those South American republics whose sepa- 
rate membership in the family of nations is hardly dis- 
puted. Persia is assured that she possesses integrity and 
independence; if so, what shadow of justification can 
there be in employing those same terms in connection with 
the Argentine Republic? If Brazil be a free and inde- 
pendent member of the family of nations, is, or is not New 
Zealand also? Is any of them a sovereign state? Persia 
is limited by a treaty with Great Britain, New Zealand by 
being a partner in the Britannic Commonwealth, and Bra- 
zil is a member of the League of Nations. 

In the thought of the American Revolution, states can 
only be sovereign in the sense that they are portions o of so- 


“ciety, groups of people. The group can only be called 


sovereign by virtue of being composed of. people who are 
sovereign. This is a very long way from what is ordi- 
narily meant by the expression sovereign state. With 
that “living personality,” that self-existant organismic en- 
tity which has a being apart from the people who make it 
up, the thought of the American Revolution had not much 
to do. Yet, even the people were not sovereign in the 
Bodin-Burgess sense of a supreme power unrestrained by 
laws. The groping for a commonwealth of nations which 
characterized the thought of so many Americans in the ten 
years before the Revolution rendered the term “sovereign 
state’ of doubtful respectability. 

Such principles tend to shift the burden of responsi- 
bility which government assumes from the state to society. 
Even if the suprema lex be the salus populi, at least the 
populi are entitled to have some voice in what constitutes 
their salus, and they may not care to identify that with 
what a particular government regards as the safety of the 
state. There is no use in society getting indignant at the 
state; the task is to get possession of it. Upon the out- 
come of this effort depends very largely the discovery of 


THE RELATION TO MODERN THOUGHT 189 


the formula which will compromise between the old and 
untenable theory of an absolutely irresponsible and inde- 
pendent state and the servile theory of a subject and 
“economically tributary state. In_the Britannic Common- 
wealth we may observe the formula most clearly and ben- 
eficially worked out in the case of those dominions where 
the people have most effectively got control of the state, 
while the formula is least clear in those cases where the 
thousands of illiterates makes it impossible for the people 
to capture the state. So it was in 1776; the colonials had 
worked out a formula. The question of independence: 
might never have arisen but for Britain’s insistence that 
no line could be drawn between absolute subjection and 
absolute independence. The federally thinking politician, 
whose mental processes moved in economic channels, must 
have recognized that the social and economic divergence 
of Britain and her overseas colonies had by 1765 become 
so manifest as to demand a reorganization of the empire 
based upon the facts of the economic world. _But Eng- 
lishmen seemed to find it difficult to.grasp the ideas that 
authority must be distributed and that law must be sov- 
oi ae 


BIBLIOGRAPHICAL NOTES 
ifs 
GENERAL BIBLIOGRAPHICAL WORKS. 


There is as yet no good, complete, critical bibliography of the 
American Revolution. Besides the usual aids, such as Channing, 
Hart and Turner’s Guide, G. E. Howard’s Preliminaries of the 
Revolution, C. H. Van_Tyne’s American Revolution, Channing’s 
History of the United States, Vol. III, there is a very interesting 
although very incomplete list at the end of M. C.. Tyler’s Literary 
History of the American Revolution. Chamberlain and Justin 
Winsor, who wrote chapters i and ii in Vol VI of the Critical and 
Narrative History edited by the latter, supply some useful hints. 
The following have been of the greatest value for general ref- 
erence: 


EVANS, THOMAS: American Bibliography, volumes IV and 
V, covers the period under consideration here, and attempts to 
give the titles of all books published in America between 1765 
and 1785. 

SABIN, JOSEPH: Bibliothea Americana, A Dictionary of 
Books Relating to America, from Its Discovery to the Present 
Time. (N. Y., 1868-1892.) Vols. I to XIX and part of XX 
appeared containing af alphabetical list of all the books the 
editor could locate, published in either England or America. It 
i. extremely valuable as a check list, but unfortunately incom- 
plete. 

CHARLES RICHE HILDEBURN: Century of Printing (Phila., 
1885.) Vols. I and II, lists all the issues of the press in Penn- 
sylvania from 1685-1784. 


II 
COLLECTIONS OF OFFICIAL DOCUMENTS, ETC. 
ALMON, JOHN: The Parliamentary Register, Vols. I and II 
for 1774. (London, 1774.) 


ALMON, JOHN: A Collection of Interesting and Authentic 
Documents Relative to the Dispute Between Great Britain and 
America, Shewing the Causes and Progress of the Misunder- 
standing from 1764 to 1775. (London, 1777.) Usually known 
as “Almon’s Prior Documents.” 

AMERICAN GAZETTE, THE: Being a Collection of all the 
Authentical Addresses, Memorials, etc., on the Dispute Between 
Great Britain and her Colonies. (London, 1768.) 


[190] 


BIBLIOGRAPHICAL NOTES 191 


ANNUAL REGISTER, THE. (London, 1765-75.) 
DOCUMENTS Relating to the Colonial History of New York 
13 vols. (N. Y., 1856-75.) 

FORCE, PETER, ed.: American Archives, 4th Series, Vol. I. 
(Washington, 1837.) 

GIBBES, ROBERT W.: History of the American Revolution, 
Consisting of Letters and Papers Relating Chiefly to the Con- 
test in South Carolina. (Columbia, S. C., 1853.) 

GRIFFITH, WILLIAM: Historical Notes on the American Col- 
onies and the Revolution from 1754-1775. (Burlington, N. J., 
1843.) 

HANSARD, THOMAS CURSON: The Parliamentary History 
of England. Vols. XV, XVI and XVII. (London, 1813-14.) 

JOURNALS OF THE CONTINENTAL CONGRESS (W. C. 
Ford ed.) (Washington, 1904.) 

LETTERS of the Members of the Continental Congress, edited by 
E. C. Burnett, Vol. I. (Washington, 1921.) 

MASSACHUSETTS STATE PAPERS: Alden Bradford, edi- 
tor: Speeches of the Governors of Massachusetts, and Answers 
of the House of Representatives of the Same, 1765-76, and other 
Public Papers. (Boston, 1818.) 

MOORE, FRANK: Diary of the American Revolution from 
Newspapers and Original Documents. (N. Y., 1860.) 

NILES, HEZIKIAH: Principle Acts of the Revelations in Amer- 
ica. (Baltimore, 1822.) 

RECORDS OF THE FEDERAL CONVENTION OF 1787 
(Max Farrand ed. 1911.) 


III 
BIOGRAPHIES, MEMOIRS, COLLECTED WORKS. 


ADAMS, JOHN: The Works of. (C. F. Adams, ed.) 10 
vols. (Boston, 1856.) 

ADAMS, JOHN: Life of. By Charles Francis Adams, v. Works, 
supra. 

ADAMS, SAMUEL: The Writings of. (H. A. Cushing, ed.) 
4 vols. (N. Y., 1904-8.) 

ADAMS, SAMUEL: Life of. By William V. Wells. 3 vols. 
(Boston, 1665.) 

BARRINGTON-BERNARD Correspondence, The: (E. Chan- 
ning and A. C. Coolidge, ed.) (Boston, 1914.) 

CARLISLE, EARL of: Manuscripts of. Historical Manuscripts 


eerie Fifteenth Report, Appendix, Pt. vi. (London, 
1897.) 


192 POLITICAL IDEAS AMERICAN REVOLUTION 


COLDEN, CADWALLADER: Papers of, in the New You His- 
torical Society Collections, Vols. IX and X. (N. Y., 1888-95.) 

DARTMOUTH, EARL of: Manuscripts of. Vol. II, jeercaatie 
Papers. Historical Manuscripts Commission, Fourteenth Re- 
port, Appendix, Pt. x. (London, 1895.) 

DICKINSON, JOHN: Life and Writings of, in the Memoirs of 
the Pennsylvania Historical Society, Vols. XIII and XIV. Life 
by Charles Janeway Stillé and Works edited by Paul Leicester 
Ford. (Phila., 1891.) 

DRAYTON, JOHN: Memoirs of the American Revolution from 
Its Commencement in 1776 as Relating to the State of South 
Carolina. 2 vols. (Charleston, S. C., 5) 

FITCH, THOMAS: Correspondence and Papers of, in the Con- 
necticut Historical Society Collections. Vol. XVI IL. 

FRANKLIN, BENJAMIN: The’ Works. (J. Sparks, ed.) 10 
vols. ( Boston, 1847.) The Complete Works of. (John Bigelow, 
ed.) 10 vols. (N. Y., 1887-88.) The writings of. rots 
Smyth, ed.) 10 vols. (N. Y., 1905-9.) 

GEORGE III: Correspondence with Lord North, 1768-83. (W. 
B. Donne, ed.) 2 vols. (London, 1867.) 

HAMILTON, ALEXANDER, Works of. (J. C. Hamilton, ed.) 
7 vols. (N.-Y., 1850.) (H.C. Ledge) ied) a9 ivaisnmneee: 
1885-6.) 

HANCOCK, JOHN: A Picturesque Patriot, by Lorenzo Sears. 
(N. Y., 1912.) 

HOPKINS, STEPHEN: A Rhode Island Statesman, by William 
E. Foster, in the Rhode Island Histcrical Tracts, No. 19. (Prov- 
idence, 1884.) 

HOPKINS, STEPHEN: Correspondence of, in the Rhode Island 
Records, Vol. VI. 

HUTCHINSON, THOMAS: The Diary and Letters of. (P. O. 
Hutchinson, ed.) (Vol. I, Boston, 1884; Vol. II, Boston, 1886.) 

HUTCHINSON, THOMAS: Life of, by ‘Jara Kendall Hosmer. 
(N. Y., 1896.) 

IREDELL, JAMES: Life and Correspondence of, by Griffith J. 
MkRee. 2 vols. (N. Y., 1857.) 

JEFFERSON, THOMAS: The Writings of. (H. A. Wash- 
ington, ed.) 9 vols. (N. Y., 1853-4); The Writings of (P. L. 
Ford, ed.) 10 vols. (N. Y., 1892-7.) 

JOHNSON, SAMUEL: Life of, by James Boswell. (G. Birk- 
beck Hill, ed.) 4 vols. 

LEE, RICHARD HENRY: Letters of. (J. C. Ballagh, ed.) 2 
vols. (N. Y., 1912.) 

NORTH, FREDERICK, Lord: Second Earl of Guilford, by Reg- 
inald Lucas. 2 vols. (London, 1913.) 


BIBLIOGRAPHICAL NOTES 193 


OTIS, JAMES: Life of, by William Tudor. (Boston, 1823.) 


PAINE, THOMAS: Works of. 4 vols. (M. D. Conway, ed.) 
(N. Y., 1894.) 
PAINE, THOMAS: Life of, by Moncure D. Conway. 2 vols. 
NEN Yen LO08:) 


QUINCEY, JOSIAH: A Memoir of, by Josiah Quincey, Jr. 
(Boston, 1825.) 

SHARP, HORATIO: Correspondence of. (W. H. Browne, ed.) 
(1888-95. ) 

SHARPE, GRANVILLE: Memoirs of, Composed from His Own 
Manuscripts and from Other Authentic Documents, Etc., by 
Prince Hoare. (London, 1820.) 

SHELBURNE, EARL OF: Life of, by Lord Fitzmaurice. 2 
vols. (London, 1912.) 

SMITH, WILLIAM: Works of the Late Provost of the College 
and Academy of Philadelphia. 2 vols. (Phila., 1803.) 


WASHINGTON, GEORGE: Writings of. (Jared Sparks, ed.) 
12 vols. (N. Y., 1834-7); Writings of. (W. C. Ford, ed.) 
14 vols. (N. Y., 1889-93.) 

WILSON, JAMES: Works of. (Bird Wilson, ed.) 3 vols. 
Phila., 1803) ; Works of. (J. D. Andrews, ed.) 2 vols. (Chi- 
cago, 1896.) A new edition of the “Life and Writings of James 
Wilson” by Burton Alva Konkle is announced to be published 
shortly. This work will supersede the two above. 


IV 
CONTEMPORARY LITERATURE, 


(In the seach for this material it often occurred to me that it 
would be useful if the compilers of bibliographies would in some 
way indicate where certain of the rarer pamphlets could be found. 
I have therefore indicated here where the pamphlet or other writ- 
ing which I used in this class may be found. This, of course, does 
not imply that other copies may not exist in other collections or 
libraries. The following symbols are used: NI—The Newberry 
Library at Chicago. HSP—The Historical Society of Pennsyl- 
vania at Philadelphia. LCP—The Library Company of Philadel- 
phia. LC—The Library of Congress. UPL—University of Penn- 
sylvania Library at Philadelphia.) 


ACCOUNT, An, of a Late Conference on the Occurrences in 
America, in a Letter to a Friend. (London, 1766.) LCP. 


ADAMS, JOHN: A Dissertation on the Canon and Feudal Law. 
(London, 1768.) NL. 


ADAMS, JOHN: Novanglus and Massachusettensis; or Political 
Essays published in the years 1774 and 1775 on the Principal 


°194 POLITICAL IDEAS AMERICAN REVOLUTION 


Points of Controversy Between Great Britain and Her Colonies. 
(Boston, 1819.) LC. 

ADAMS, SAMUEL: The True Sentiments of America: Con- 
tained in a Collection of Letters Sent from the House of Rep- 
resentatives of the Province of Massachusetts Bay to Several 
Persons of High Rank in This Kingdom. (London, 1768.) NL 

ANDREWS, JOHN: A History of the War With America, 
France, Spain and Holland, 1775-1783. (London, 1785.) [The 
author was an Englishman who came to America in 1770 and he 

APPLICATION, An, of Some General Political Rules to the 
Present State of Great Britain, Ireland and America in a Let- 
ter to the Righ Honorable Earl Temple. (London, 1766.) LCP. 

APOLOGY, An, for the Late Conduct of America from the Lon- 
don Gazetteer, April 7, 1774. (v. Force, Amer. Arch., 4th sec. 
I, 241.) 

ARGUMENT, An, in Defense of the Exclusive Right Claimed 
by the Colonists to Tax Themselves, with a Review of the Laws 
one Relative to Taxation and Representation. (London, 
1774.) : 

BERNARD, FRANCIS: Select Letters on the Government of 
America and the Principles of Law and Polity Applied to the 
American Colonies. (London, 1774.) UPL 

BLACKSTONE, WILLIAM: Commeniaite on the Laws of 
England. (Chitty, ed.) 

BLAND, RICHARD: The Colonel Dismounted, or the Rector 
Vindicated, in a Letter Addressed to His Reverence, Containing 
a Dissertation on the Constitution of the Colony. (Williams- 
Pate, ae 1766.) LC. (v. Wm. & Mary Quar. Hist. Mag., 

, 31.) 

BLAND, RICHARD: An Enquiry Into the Rights of the Britis’ 
Colonies. (Williamsburg, Va., 1766.) LC. [E. G. Swem, li- 
brarian of the William and Mary College Library has edited and 
reprinted this rare pamphlet. (Richmond, 1922.) ] 

BOUCHER, JONATHAN: A View of the Causes and Conse- 
quences of the Amerivan Revolution, in thirteen discourses. 
(London, 1797.) : 

BURGH, JAMES: Political Disquisitions, or An Inquiry Into 
Public Errors, Defects and Abuses. (London, 1774.) 3 vols. 
BUSHE, GERVASE PARKER: The Case of Great Britain and 
America: An Address to the King and Both Houses of Parlia- 

ment. (Phila) 17699) Se. 

CARTWRIGHT, JOHN: American Independence; the Interest 
and Glory of Great Britain. (London, 1774.) LCP. 

CHALMERS, GEORGE: Political Annals of the Present United 
Colonies, from their Settlement to the Peace of 1763. (London, 
1780.) [Chalmers was one of the few historians of his day who 


BIBLIOGRAPHICAL NOTES 195 


really wrote history from the sources. His official position gave 
him access to records closed to other authors. | 
CHURCH, BENJAMIN: Liberty and Property Vindicated and 
the St——p—Mi—n Burnt. (Hartford, 1765.) LC. 
- CONDUCT of the Late Administration Examined. With An 
Appendix Containing Original and Authentick Documents. 
rontey, 1767.) [Probably by Charles Lloyd, v. D. N. B.] 


PEN IOaR A ciONS on the Rights of the Colonies to the Privi- 
leges of British Subjects. (N. Y., 1766.) LCP. 

CONSIDERATIONS on Certain Political Transactions of the 
Province of South Carolina, Containing Views of the Colonial 
Legislature, with Observations Showing Resemblance to the 
British Model. (London, 1774.) LC. 

CONTROVERSY between Great Britain and Her Colonies Re- 
viewed; The Several Pleas of the Colonies in Support of their 
Right, etc., etc. iis 1769.) LCP. [Probably by William 
Knox ,v. D.N. B.] 

COOPER, MYLES: An American Querist; or, Some Questions 
Proposed Relative to the Present Dispute Between Great Britain 
and Her American Colonies. (n. p., 1774.) LCP. 

COOPER, MYLES: A friendly Address to All Reasonable Amer- 
icans on the Subject of the Political Confusions in Which the 
Necessary Consequences of Violently Opposing the King’s 
Troops and a General Non-Importation Are Fairly Stated. (N. 
Vee 1774:) igh 

CRISIS, The: Or a Full Defense of the Colonies.. (London, 
1766.) [Probably by Samuel Cooper. ] 


PN: Remarks on American Affairs. (London, 1774.) 


DICKINSON, JOHN: An Address to the Committee of Corre- 
spondence in Barbadoes, Occasioned by a late letter from them 
to their agent in London. (Phila., 1766.) LCP. 

DICKINSON, JOHN: Letters from a Farmer in Pennsylvania 
to the Inhabitants of the British Colonies. (Phila., 1768.) NL. 

DRAYTON, WILLIAM HENRY: Answer to Considerations on 
Certain Political Transactions of the Province of South Caro- 
lina. (London, 1774.) LC. 

DRAYTON, WILLIAM HENRY: A letter from a Freeman of 
South Carolina to the Deputies of North America, Assembled 
in the High Court of Congress at Philadelphia. (Charleston, S. 
CA 774:): LG. 

DULANEY, DANIEL: Considerations of the Propriety of Im- 
posing Taxes on the British Colonies for the Purpose of Raising 
ey He by An Act of Parliament. (Annapolis, Md., 1765.) 


196 POLITICAL IDEAS AMERICAN REVOLUTION 


ESSAY, An, on the Constitutional Power of Great Britain Over 
the Colonies in America. (Phila, 17742) "EGE 

EXAMINATION, An, of the Rights of the Colonies upon Prin- 
ciples of Law, by a Gentleman of the Bar. (London, 1766.) NL. 

EXTRACT of a Letter from the House of Representatives of 
Massachusetts Bay to their Agent, Dennys de Berdt, with Some 
Remarks. (London, 1770.) LCP. 

FEW, A, Political Reflections submitted to the Consideration of 
the British Colonies in America by a Citizen of Philadelphia. 
(Phila., 1774.) [Sometimes attributed to Richard Wells, esp. 
by M. on Tyler and so designated in catalogue at HSP.] HSP. 

FITCH, THOMAS: Reasons Why the British Colonies in Amer- 
ica Should Not Be Charged with Internal Taxes by the Author- 
ity of Parliament; humbly offered for Consideration in behalf 
of the Colony of Connecticut. (New Haven, 1765.) 

FLETCHER, J.: American Patriotism. (n. p., 1777.) NL. 

GALLOWAY, JOSEPH: A Candid Examination of the Mutual 
Claims of Great Britain and Her Colonies. With a Plan of Ac- 
commodation on Mutual Constitutional Principles. (New York, 
IV SV Wh OWE} 

GALLOWAY, JOSEPH: A Reply to an Address to the Author 
of a Pamphlet entitled a Candid Examination, etc., by the Author 
of the Candid Examination. (New York, 1775.) LC. 


GALLOWAY, JOSEPH: The Examination of Joseph Galloway, 

Esq., late Speaker of the House of Assembly of Pennsylvania be- 
fore the House of Commons, in a Committee on the American 
Papers. (London, 1779.) LCP. 

GALLOWAY, JOSEPH: Historical and Political Reflections on 
the Rise and Progress of the American Rebellion. (London, 
17803); EG: 

GALLOWAY, JOSEPH: Plain Truth, or, a A Letter to the 
Author of ‘Dispassionate Thoughts on the American War. 
(London, 1780.) LC. 


GALLOWAY, JOSEPH: Political Reflections on the Late Co- 
lonial Governments, in which their Original Constitutional De- 
fects are Pointed Out, and Shewn to have Naturally Produced 
the Rebellion which has unfortunately terminated in the Dis- 
memberment of the British Empire. By an American. (Lon- 
dony1783) LG 

GENERAL OPPOSITION of the Colonies to the Payment of 
the Stamp Duty * * * and also A Plan for Uniting to this 
Kingdom, etc., in a Letter to a Member of Parliament. (Lon- 
don, 1766.) NL. 

GORDON, WILLIAM: A History of the Rise, Progress and Es- 
tablishment of the Independence of the United States of Amer- 
ica. (London, 1788.) 


BIBLIOGRAPHICAL NOTES 197 


HAMILTON, ALEXANDER: Full Vindication of the Measures 
of the Continental Congress from the Calumnies of their Ene- 
AA(eS (NONE, 774) LL 

HAMILTON, ALEXANDER: The Farmer Refuted: or, A More 
Comprehensive and Impartial View of the Disputes between 
Great Britain and the Colonies, intended as a Further Vindica- 
tion of the Congress, in Answer to a Letter from A. W. Farmer, 
(New York, 1775.) LCP. 

HOPKINS, STEPHEN: Rights of the Colonies Examined 
(Providence, 1765.) Reprinted as Grievances of the American 
Colonies Candidly Examined. (London, 1766.) NL.; v. also 
Rhode Island Records, Vol. VI. 

HOWARD, MARTIN: A_Defence of the Letter from the 
Gentleman in Halifax to His Friend in Rhode Island. (New- 
DOG LAOS) iy lees 

HOWARD, MARTIN: A Letter from a Gentleman in Halifax 
to his Friend in Rhode Island, containing Remarks on a pam- 
phlet entitled Rights of the Colonies Examined. (Newport, 
1765;)i5 ue: 

HUNT, ISAAC: The Political Family; or, A Discourse Pointing 
Out the Reciprocal Advantages which Flow from an Uninter- 
rupted Union between Great Britain and Her American Colonies. 
(Philadelphia, 1775.) LCP. 

HUTCHINSON, THOMAS: A History of the Province of 
Massachusetts Bay. (London, 1838.) 3 vols., of which Vol. III 
covers the period under consideration. 

HUTCHINSON, THOMAS: and Lieutenant Governor Oliver, 
The Letters of, (Boston, 1773.) NL. 

HUTCHINSON, THOMAS: Strictures upon the Declaration of 
the Congress at Philadelphia in a Letter to a Noble Lord. (Lon- 
don, 1776.) LC. 

IREDELL, JAMES: Address to the Inhabitants of Great Britain 
(n. Pp. 1774) reprinted in McRee, I, 205-20; The Principles of 
an American Whig (n. p., 1775), ‘reprinted in McRee, I, 245-54; 
Unentitled Pamphlet on the Revolution Gntips 1776), reprinted 
in McRee, I, 283-323. 

JEFFERSON, THOMAS: Summary View of the Rights of Brit- 
ish America set Forth in Some Resolutions intended for the 
Inspection of the Present Delegates of the People of Virginia 
now in Convention: By a Native and a Member of the House of 
Burgesses. (London, 1774.) 

JENYNS, SOAME: The Objection to the Taxation of Our 
American Colonies by the Legislature of Great Britain Briefly 
Considered. (London, 1765.) LCP. 

JOHNSTONE, GEORGE: Speech on the Question of Recom- 
mitting the Address Declaring the Colony of Massachusetts Bay 
in Rebellion. (London, 1776.) 


198 POLITICAL IDEAS AMERICAN REVOLUTION 


JOHNSTONE, GEORGE: Speech on American Affairs, on the 
Address in Answer to the King’s Speech. (London, 1776.) NL. 


JUNIUS: Including Letter by the Same Writer under Other Sig- 
natures, to which are added his Confidential Correspondence with 
Mr. Wilkes and His Private Letters to Mr. H. S. Woodfall. A 
New and Enlarged edition with New Evidence as to the Author- 
ship and an Analysis by the Late Sir Harris Nicholas. By John 
Wade. 2 vols. (London, 1890.) 


KNOX, WILLIAM: The Claim of the Colonies to an Exemption 
from Internal Taxes imposed by the authority of Parliament, 
Examined in a Letter from _a Gentleman in London to a Friend 
in America. (London, 1765.) LC. 


LATE (The) Occurrences in North America and the paler 
of Great Britain Considered. (London, 1766.) LCP. NL 

LATE (The) Regulations respecting the British Colonies on the 
Continent of America considered in a Letter to a Gentleman in 
Bi ieiphie, from his Friend in London. (London, 1766.) 


LATHROP, JOHN: Discourse Preached on March 5th, 1778. 
(Boston, 1778.) NL. 

LEE, ARTHUR: Appeal to the Justice and Interests of the Peo- 
ple of Great Britain in the Present Dispute with America, by 
an Old Member of Parliament. Nos. 1 and 2. (London, 1774.) 

LEE, ARTHUR: The Political Detection, or, Treachery and 
Tyranny of Administration, both At Home and Abroad, dis- 
played in a Series of Letters, signed Junius Americanus. (Lon- 
don, 1770), LC: 


LEE, ARTHUR: Speech Intended to have been Delivered in the 
House of Commons, in support of the Petition from the Gen- 
eral Congress at Philadelphia. (London, 1775.) 


LEE, CHARLES: Strictures on a Pamphlet entitled Friendly 
Address to All Reasonable Americans. (Phila., 1774.) LCP. 

LEONARD, DANIEL: Massachusettensis, or a Series of Let- 
ters containing a faithful State of many important and striking 
Facts which laid the Foundation of the present Troubles in the 
Province of Massachusetts Bay; interspersed with Animadver- 
sions and Reflections, originally addressed to the People of 
that Province, and worthy the Consideration of True Patriots 
of this Country. By a Person of Honor upon the Spot. (Lon- 
don: 1776:) + 2G. 

LETTER (A) in Defence of Mr. Fox and Others in answer to 
Cicero, Lucius Cataline, and Several Others to the Prince of 
Wales. (London, n. d.) NL. 

LETTER (A) To The Right Honorable Lord M * * * * on 
Affairs in America from a Member of Parliament. (London, 
1775). 


BIBLIOGRAPHICAL NOTES 199 


LETTERS TO the Right Honorable, the Earl of Hillsboro from 
Governor Bernard, and Governor Gage. (London, 1769.) NL. 

MACAULAY, CATHERINE: Address to the People of England, 
Scotland and Ireland on the Present Important Crisis of Af- 
fairs. (London, 1775.) 

MACCARTY, THADDEUS: Two Sermons Preached at Wor- 
cester in 1774. (Boston, 1774.) NL. 


MADUIT, ISRAEL (lsrail.): Some Thoughts on the Method 
of Securing and Improving Advantages Which Accrue to Great 
Britain from the Northern Colonies. (London, 1760.) 


MARSHALL, JOHN: A History of the Colonies Planted by 
England on the Continent of North America, from their Settle- 
ment to the Commencement of that War which Terminated 
in their Independence. (Phila., 1824.) 

MASERES, FRANCIS (Masseres): Considerations on the Ex- 
pediency of Admitting Representatives from the American 
Colonies to the British House of Commons. (London, 1770.) 
NL. 


MAYHEW, JONATHAN: The Snare Broken. A Thanksgiving 
Discourse Preached at the Desire of the West Church in Boston 
N. E., Friday, May 23, 1766, occasioned by the Repeal of the 
Stamp Act. (Boston, 1766.) NL. 

OBSERVATIONS on the Reconciliation of Great Britain and 
her Colonies by a Friend of American Liberty. (Phila., 1776.) 
NL. 

OTHER (The) Side of the Question, in Answer to the Late 
“Friendly Address to All Reasonable Americans.” By a Citi- 
zen. ((N. Y¥:, 1776.) 

OTIS, JAMES: Vindication of the British Colonies Against the 
Aspersions of the Halifax Gentleman in a Letter to a Rhode 
Island Friend. (Boston, 1762.) (London, 1769.) NL. 

OTIS, JAMES: Rights of the British Colonies Asserted and 
Proved. (London, 1766.) (3rd ed.) NL. 

OTIS, JAMES: Brief Remarks on the Defense of the Halifax 
Libel ‘on the British American Colonies. (Boston, 1765.) LC. 

OTIS, JAMES: Considerations on Behalf of the Colonists in a 
Letter to a Noble Lord. (London, 1765.) (2nd ed.) NL. 


PAINE, THOMAS: Common Sense, Addressed to the Inhabi- 
tants of America, etc., with the whole Appendix. (Phila., 
1776s) NIL: 


PARAPHRASE On a Passage in a Sermon by the Archbishop 
Olona (nDNA) a Nile 


PETITION (A) from the Assembly of Massachusetts Bay to the 
King with Several Other Papers. (Boston, 1768.) LCP. 


PLAN (A) of Reconciliation between Great Britain and Her Col- 


200 POLITICAL IDEAS AMERICAN REVOLUTION 


onies Founded on Justice and Constitutional Security, by which 
the Rights of Englishmen in Matters of Taxation are Pre- 
served to the Inhabitants of America and the Islands Beyond 
the Atlantic. (London, 1776.) LC. 


PLAN (A) of Union, by Admitting Representatives from the 
American Colonies and from Ireland to the British Parliament. 
Phila 770s o@ies 

PLAN (A) or Articles of Perpetual Union, Commerce and 
Friendship between Great Britain and Her Amreican Colonies: 
Founded on the Solid Basis of Justice and Proposed as a Me- 
dium between the Claims of Total Independence on One Hand, 
and Those of Legal Subjection on the Other. (London, 1780.) 


PLAN (A) of Reconciliation with America, consistent with the 
Dignity and Interest of both Countries. (London, 1782.) LC. 

PLAN (A) to Reconcile Great Britain with Her Colonies and 
Preserve the Dependency of America, by “Cosmopolite.” (Lon- 
don, 1774.), iC: 

PLAIN TRUTH, Addressed to the Inhabitants of America; Con- 
taining Remarks on a Late Pamphlet Entitled Common Sense. 
Written by Candidus. (Phila. 1776.) NL. 

PROPOSAL OF A PLAN toward Reconciliation and Reunion 
with the Provinces of America, and for a Union with the Other 
Colonies by One of the Public. (London, 1778.) NL. 

POOR (A) MAN’S Advice to His Poor Neighbors: a Ballad to 
the Tune of Chevy Chace. (N. Y., 1774.) LCP. 

POWNALL, THOMAS: Administration of the Colonies, wherein 
their Rights and Constitutions are Discussed and Stated. (Lon- 
don, 1768.) LCP. 

PRICE, RICHARD: Two Tracts on Civil Liberty. (London, 
1778.) NL. 

PROPOSAL OF A PLAN toward Reconciliation and Reunion 
with the Provinces of America and for a Union with the Other 
Colonies, By One of the Public. (London, 1778.) NL. 

PULTENEY, WILLIAM: Thoughts on the Present State of Af- 
fairs with America, and'Means of Reconciliation. (London, 
L778) Ss 

QUINCY, JOSIAH: Observations on the Act of Parliament 
Commonly Called the Boston Port Bill; with Thoughts on Civil 
Society and Standing Armies. (Boston, 1774.) He 

RAMSAY, DAVID: A History of the American Revolution. 
(Phila., 1786.) 

REGULATIONS, Lately Made Concerning the Colonies and 
Taxes Imposed Upon Them Considered. (London, 1765.) HSP. 


ROBINSON, MATTHEW [Lord Rokeby]: Considerations on 


BIBLIOGRAPHICAL NOTES 201 


the Measures Carrying on with Respect to the British Colonies 
in America. (Boston, 1774.) LC. 


ROBINSON, MATTHEW [Lord Rokeby]: A Fes Exami- 
_nation of Our Present American Measures and of the Reasons 
‘and Principles on Which They Are Founded. (London, 1776.) 
NL. 


SAYRE, E.: The Englishman Deceived. (N. Y., 1768.) LC. 


SHARP, GRANVILLE: A Declaration of the People’s Natural 
Right to Share in the Legislature which is the Fundamental 
Principle of the British Constitution of the State. (Phila., 
IVES ee Ol =e 

SMITH, WILLIAM: Sermon on the Present Situation in Amer- 
ican Affairs. @Philass 1775.) NL: 


SEABURY, SAMUEL: Free Thoughts of the Proceedings of the 
Continental Congress held at Philadelphia, September 5, 1774, 
Wherein Their Errors are Exhibited, Their Reasonings Con- 
futed, and the Fatal Tendency of their Non-Importation, Non- 
Exportation and Non-Consumption Measures are laid open to 
the plainest Understandings; and the Only Means Pointed Out 
for Preserving and Securing Our Present Constitution, By a 
Barmern (ns p:,).1774.) LCP. 


SEABURY, SAMUEL: The Congress Canvassed; or, An Exami- 
nation into the Conduct of the Delegates at their Grand Conven- 
tion held in Philadelphia, September 1, 1774. Addressed to the 
weechants of New York. By A. W. Farmer. (n. p., 1774.) 


SEABURY, SAMUEL: A View of the Controversy between 
Great Britain and Her Colonies: Including a Mode of Determin- 
ing their Present Disputes, finally and Effectually, and of Pre- 
venting all future Contentions. In a Letter to the Author of a 
Full Vindication of the Measures of Congress from the Calum- 
aa of their Enemies. By A. W. Farmer. (N. Y., 1774.) 


SEABURY, SAMUEL: An Alarm to the Legislature of the 
Province of New York, occasioned by the present Political Dis- 
turbances in North America: Addressed to the Honorable Rep- 
oS in General Assembly Convened. (N. Y., 1775.) 

SEABURY, SAMUEL: The Republican Dissected, or, The Anat- 
omy of an American Whig. By A. W. Farmer. (N. Y., 1775.) 
(Advertised for publication, but not known to have been pub- 
lished: v. Tyler: Lit. Hist. of Amer. Rev. II: 475.) 


SEWALL, JONATHAN: v. Novanglus and Massachusettensis 
supra. 

SUPREMACY OF the British Legislature over the Colonies can- 
didly Discussed. (London, 1775.) LCP. 


202 POLITICAL IDEAS AMERICAN REVOLUTION 


STEDMAN, CHARLES: A History of the Rise, Progress and 
Termination of the American War. (London, 1784.) 


THACHER, OXENBRIDGE: The Sentiments of a British 
American. (Boston, 1764.) LC. 

TUCKER, J.: Interest of Great Britain considered with regard 
to Her Colonies. (Philadelphia, 1776.) LC. 


WHAT THINK YE of Congress Now? or, An Enquiry how far 
the Americans are Bound to Abide by, and Execute, the De- 
cisions of the late Congress. (N. Y., 1775.) LC. 

WILSON, JAMES: Considerations on the Nature and Extent of 
the Legislative Authority of the British Parliament. (Phila., 
1774.) ) GP: 

WYNNE, JOHN HUDDLESTON: A General History of the 
British ‘Empire in America. (London, 1770.) 

ZUBLY, JOHN JOACHIM: The Stamp Act Repealed '* * * 
A Sermon Preached at Savannah, June 25, 1766. (Charleston, 
1766!) yee: 

ZUBLY, JOHN JOACHIM: A Humble Inquiry into the Nature 
of the Dependency of the American Colonies upon the Parlia- 
ment of Great Britain, and the Right of Parliament to Lay 
Taxes on the said Colonies : By a Freeholder of South Carolina. 
(tis D5 17692) ELS: 

ZUBLY, JOHN JOACHIM: The Law of Liberty: A Sermon on 
American Affairs, preached at the opening of the Provincial 
Congress of Georgia. (Phila., 1775.) LC. 


Vv 


MODERN CRITICISM. 


ADAMS, GEORGE BURTON: The British Empire and a 
League of Peace, together with an Analysis of Federal Govern- 
ment. (N. Y., 1919). 

BARKER, ERNEST: Political Thought in England from Her- 
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BRT te Studies in History and Jurisprudence. (N. 

a ye 

CHAMBERLAIN, MELLIN: John Adams and Other Essays. 
(Boston, 1898). 

CHEYNEY, EDWARD POTTS: A History of England from 
the Defeat of the Armada to the Death of Elizabeth. (N. Y., 
1914). Vol. I. 

COXE, BRINTON: The Judiciary and Unconstitutional Legis- 
lation. (Phila., 1892). 

DeETOCQUEVILLE, ALEXIS: Democracy in America (Gilman 
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BIBLIOGRAPHICAL NOTES 203 
Me JOHN: German Philosophy and ‘Politics. (N. Y., 
1 ; 


DICEY, ALBERT VENN: Introduction to the Study of the Law 
and the Constitution. (8th ed. London, 1915.) 


DUGUIT, LEON: Law in the Modern State. (Trans. by H. J. 
and F. Laski. N. Y., 1915.) 


DUNNING, WILLIAM ARCHIBALD: History of Political 
Theories, Ancient and Medieval, (N. Y., 1903); History of 
Political Theories, from Luther to Montesquieu, (N. Y., 1905) ; 
sere of Political Theories from Rousseau to Spenser, (N. 


GERSON, ARMAND J.: The Organization and Early History 
of the Muscovy Company. (N. Y., 1912.) 


GIERKE, OTTO: Introduction to the Political Theories of the 
iy Age. (Trans. and intro. by F. W. Maitland. London, 


HAINES, CHARLES GROVE: The American Doctrine of Ju- 
dicial Supremacy. (N. Y., 1914.) 


JEBB, RICHARD: The Britannic Question, (London, 1913.). 
The Imperial Conference, (London, 1911.) 


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KEITH, ARTHUR BERRIEDALE: British Imperial Unity and 
the Dominions. (Oxford, 1916.) 


LASKI, HAROLD J.: The Problem of Sovereignty (Yale Press, 
1917) ; Authority in the Modern State (Yale Press, 1919) ; 
Political Thought from Locke to Bentham (N. Y., 1920); 
Foundations of Sovereignty (N. Y., 1921.) 


LINGELBACH, WILLIAM EZRA: The Merchant Adventurers 


of England, Their Laws and Ordinances with Other Documents. 
(Phila., 1902.) 


LUCAS, CHARLES P.: The Beginnings of English Overseas 
Enterprise. (Oxford, 1919.) 


McILWAIN, CHARLES HOWARD: The High Court of Par- 
liament and Its Supremacy. (Boston, 1910.) 


McLAUGHLIN, ANDREW CUNNINGHAM: Courts, Consti- 
tutions and Parties (Chicago, 1912) ; America and Britain (N. 
Y., 1918.) 

MERRIAM, CHARLES ED Eston, of the Theory of 
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Political Ideas, 1865-1920. (N. Y., 1921.) 


204 POLITICAL IDEAS AMERICAN REVOLUTION 


TYLER, LYON GARDINER: The Leadership of Virginia in 
the war of the American Revolution. (Published in instalments 
in the William and Mary Quarterly Historical Magazine, vols. 
XVIII and XIX.) 

TYLER, MOSES COIT: A Literary History of the American 
Revolution. (N. Y., 1897.) 


WALSH, CORREA M.: The Political Science of John Adams. 
CNS Yoo 15s) 








INDEX 


Adams, G. B., 202. 

Adams, John, 41, 53, 56, 61, 86 
108, 118, 121, 128, 130, "159, 166, 
168, 180-1, 191, 193. 

Adams, Samuel, 86- 87, 89, 91, 96, 
99, 120-1, 125, 162, 169-70, 172, 
175, 180, 191; 193. 

Albany Congress, 21, 67. 

Alfred the Great, 135. 

Allegiance, 45, 97; to the crown as 
distinguished from the realm, 
99-107. 

Almon, John, 47, 190. 

Andrews, John, 194. 

Aristotle, 103, 109, 132, 158, 160, 
179, 182, 183. 

Articles of Confederation of New 
England, 65. 

Ashe, Samuel, 126. 

Austin, John, 135, 138, 146-7. 


Bacon, Francis, 108. 

Barker, E., 202 

Beer, George Louis, 186. 

Bernard, Francis, 32, 49, 93, 191, 


193. 

Blackstone, William, 120-24, 130, 
134-9, 146, 171-74, 194. 

Bland, Richard, 43, 44, 46, 47, 


123, 194, 
Bodin, Jean, 156, 158-59, 166, 173- 


nie Robert, 20. 

Boston Port Bill, 19. 

Boucher, Jonathan, 194, 

Britannic, as_ distinguished from 
British, 180-81, 187-89; Common- 
wealth of Nations, 21. 40-61. 

British Imperial Problems, see Im- 
perial Problem, British. 

Bryce, James, 158, 163, 202. 

Bundestaat, 41. 

Burgess, John, 173-4. 

Burgh, James, 171, 194. 

Burke, Edmund, "25-28, 37, 71-75, 
Ue 1235, 127. 

Bushe, G. P., 194, 

Camden, Lord, (Charles Pratt), 45, 
127-32, 172. 

Campbell, John, 129-30. 

Carlyle, Thomas, 95 

Carlisle, Earl of, 38, 58, 60, 191. 

194, 


Cartwright, John, fe. 575 
Chalmers, George, 15, 194, 


Chamberlain, M., 202. 

Charles I, 98. 

Charles II, 135. 

Charters, 154, 181. 

Chatham, Lord, (William Pitt), 25- 
as 37, 70-75, 78, 83-84, 103, 127, 


1 

Cheyney, ges 

Coke, Sir eauta, 7.08, 123-24, 139- 
41, 176. 

Colden, Cadwallader, 22, 192. 

Collins, Michael, 61. 

Colonial Conference, 16. 

Colonial Dependency, 
16, 20, 23-28, 3 

Columbia University, 46. 

Commonwealth of Nations, 18, 28, 
40-61, 86-16, 128, 148. 

Commonwealths and Corporations, 
Science of, 14, 154, 181. 

Condorcet, 117. 

Constitution, Law of the, 92, 117-33, 
167, 177-79. 

Continental Congress, 47, 134, 186. 

Consent, Law by, 94, 144-45. 

Cooper, Myles, 86, 195. 

Cooper, Samuel, 195. 

Courts, _ Legislative 
from Executive, 120 

Courts and unconstitutional legis- 
lation, see Unconstitutionality of 


laws 
Cox, 202. 


Theory of, 


distinguished 


Brinton, 


Dartmouth, Earl of, 192. 
Day, John, 195. 
Declaratory Act, 129, 131. 

De Tocqueville, Alexis, 156, 202. 
Dicey, Albert Venn, 123, 163, 203. 


Dickinson, John, 56, 77-84, 134, 
168, 192, 195. 

Dewey, John, 114, 203. 

Deon William Henry, 47, 84, 
192, 5 

Dulaney, Daniel, 70-78, 84, 122, 
195. 


Duguit, Leon, 203. 
Dunning, W. A., 203. 


Edward I, 106, 135. 
Evans, Thomas, 190. 
Federal Commonwealth, 17. 
Fitch, Thomas, 192, 196. 
Fox, Charles James, 23. 
Francke, Kuno, 114. 


205 


206 


Franklin, Benjamin, 29, 34-35, 38, 
48-49, 67, 72-75, 78, 81, 83, 119; 
129, 162, 192; His examination 
before the House of Commons, 
72-74. 

Freeman, Edward A., 11. 


Galloway, Joseph, 45, 50-52, 67, 86, 
107, , 196. 

George IIT, 26, 54, 61, 85, 108, 192. 

George, David’ Lloyd, 61. 

Sane Political Philosophy, 114- 

Germanic Confederation, 41. 

Gierke, Otto, 157, 174, 203. 

Gordon, William, 196. 

Government distinguished from So- 
ciety, 115; distinguished from 
state, 215. 

Grenville, George, 66, 70, 76, 77. 

Grotius, Hugo, 108, 147, 157, 170. 


Haines, C. G., 203. 

Hamilton, Alexander, 168, 
192, 197. 

Hamilton, Andrew, 127. 

Bescodk, John, 86, 87, 94-96, 107, 

Harvey, Samuel Clay, 36. 

Hawley, Joseph, 96. 

Henry ITI, 106. 

Henry VIII, 106. 

Henry, Patrick, 86. 

Hildeburn, Chas. R., 190. 

Hobbes, Thomas, 108, 109, 146, 160 
165, 169. 

Hopkins, Stephen, 45-47, 


178-81, 


’ 


180, 192, 


Howard, Martin, 197. 

Hume, David, 108. 

Hunt, Isaac, 197. 

Hutchinson, Thomas, 50, 52, 86, 
95, 97, 99, 154, 192, 197. 


Imperial Conference, 18, 19, 47. 

Mor oad Federation, Theory Of, 17, 

Imperial Pence tae 40-61. 

Imperial Problem, The British, 9, 
LOE S59 20; 

International Law, 32, 147-52, 178. 

tee James, 56, 126, 177, 192, 


James I, 97, 98, 106, 124, 176. 
Jebb, R., 203. 


Jefferson, Thomas, 41, 43, 53, 55, 
56, 61, apa oe 134, 192, 197. 

Jenks, Edw. a 

Jenyns, ry for. 

er ee Pea OL eds, 128: 


Johnson, Samuel (of New York), 
46, 47. 


INDEX 


Johnstone, George, 197, 198. 

Judicial Supremacy, the doctrine of, 
121-33. 

Junius, 131, 198. 

Justinian, 133. 


Keith, A. B., 203. 
Kulturkampf, 14, 162. 
Knox, William, 198. 


Lansing, Robert, 11. 

Laisser-faire, the doctrine of, 183-4, 

Laski, His. Hey a0es 

Lathrop, John, 198. 

Law, the Meaning of, 134-52. | 

Law of Nations, see International 
Law. 

League of Nations, 64, 69, 188. 

Lee, Arthur, 198. 

Lee, Charles, 198. 

Lee, Richard Henry, 87, 192. 

Leonard, Daniel, ai 

Littleton, Coke on, 

Locke, John, 24, mg *i08- 110, 113) 
146, 156, 158-72, 177, 182. 

Lords of Trade, see Board of Trade. 

Louis XIV, 115. 

Lowell, A. Lawrence, 151. 

Lucas; (C. 3 Pa 20a. 

Lyttleton, Lord, 25. 


Macaulay, Catherine, 199. 

Maccarty, Thaddeus, 199. 

Machiavelli, 100, 108, 148. 

MclIlwain, C. H., 203. 

McLaughlin, A. C., 203. 

Madison, James, 42. 

Maduit, Israel, 199. 

Maitland, Frederick, W., 10, 14, 
166, 175, 176. 

Mansfield, Lord, 24, 25, 76, 130. 

Massachusettensis, 99, 100, 102-04. 

Marbury vs. Madison, 125. 

Marshall, John, 124, 199. 

Marsiglio of Padua, 160, 182. 

Masseres, Francis, 33, 199. 

Mayhew, Jonathan, 130, 199. 

Merchant Adventurers, 154-55, 181. 

Merriam, C. E., 203. 

Milton, John, 108. 

Morris, Gouverneur, 79. 

Muscovy Company, 155. 


Nationality, 90. 

Navigation Acts, 88, 104, 136. 
Nedham, Marchmont, 108. 
North, Lord, 25-26, 192. 
Northington, Lord, 129, 131. 
Novanglus, 99- 100, 103, 107. 


Otis, James, 30, 34, 86, 91-93, 
124, 182, 193, 199, 
Oxford, University ‘Of, 236) 


121, 


Pt 


~ te PL 





| Paine, Thomas, 


| Pownall, 





INDEX 


see So- 


125, 


Parliamentary Supremacy, 
vereignty of Parliament. 
109-117, 121, 
159, 178, 193, 199. 
Pennsylvania, University of, 135. 
Philanglus Americanus, 46. 


| Pitkin, Thomas, 122. 
| Pitt, 


William, see Lord Chatham. 
Plan of Union, 35, 51, 59, 65-66, 
199-200. 
Price, Richard, 200 
Thomas, Ua 32, 39, 200. 
Poynings Law, 106 


Pratt, Charles, cee Lord Camden. 
Puffendorf, Samuel, 108, 138, 146, 
4, 


Pulteney, William, 58, 200. 
Quincey, Josiah, 193, 200. 


Ramsay, David, 200. 
Randolph, Edmund, ast 
Randolph, Peyton, iat 
Raynal, Abbe, 110. 
Realm, 98, 106, Allegiance to, 99. 
Representation, 29s ods 134-35, 375 
Revolution of 1688, 123. 
Rights of Man, 113. 
Robinson, Matthew, 200-01. 
Rockingham Ministry, 128. 
Rotten Borough System, 30. 
Rousseau, Jean Jacques, 
113, 160, 164-65, 169, 


Sabin, Joseph, 190, 

Seabury, Samuel, 201. 

Sewall, Jonathan, 201. 

Sharp, Granville, 57, 58, 193, 201. 
Shelburne, Earl of, 119, 193. 
Smith, Sidney, 166. 

Smuts, Jan Christian, 20. 
Sovereign State, 18, 42. 

Sovereignty, 9, 11, 19, 60, 95, 153- 
65; of Law, 118- 119, 179- 80, 189; 
of Parliament, 23-24, 43- 44, 50, 


108-110, 
8. 


207 


81-82, 95, 100; of the people, 
140, 156, 166, 170-1; political 
differentiated from legal, 163, 
173-5; problem of, 11. 

Staats und Korporationslehre, 13. 

Stamp Act, 24, 32-33, 65, 88, 91, 
93, y 

Stamp Act Congress, 21, 23. 

State differentiated from Govern- 
ment, 115. 

Staatenstaat, 41. 

Stedman, Charles, 202. 

Steele, Joshua, 47. 

Sydney, Algernon, 108. 


Taxation, 29, 56, 64-84; distinction 
between legislation and taxation, 
74-79; distinction between taxa- 
tion and trade regulation, 79-85. 

Taxes, External, 69, 70-79; Inter- 
nal, 30, 69-79. 

Thacher, Oxenbridge, 202. 

Theodosius, 135. 

Townshend, Charles, 74-75; 77. 


Treitschke, Heinrich von, 112. 
Tiler, le Gis (2032 

Tyler, M. C., 204. 
Unconstitutionality of laws, 92, 


118, 123-33. 
Union, Colonial, 32-33, 35. 


Veteran, 99, 100. 


Walsh, C. M., 204. 

Warren, Joseph, 96. 

Washington, George, 193. 

Wilkes, John, 127-128. 

William of Ockham, 182. 

Wilson, James, 41, 53-56, 61, 118, 
121, 134-52, 170-78, 182, 193, 262 

Wilson, Woodrow, 112, 184. 

Wynne, J. H., 202. 

Wythe, George, 55. 


Zenger, John Peter, 127. 
Zubly, John Joachim, 202. 





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